David Vs Arroyo

9/17/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 489
160 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo
G.R. No. 171396

*
. May 3, 2006.
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD

LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, petitioners, vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY
OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA,
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE, respondents.
*
G.R. No. 171409. May 3, 2006.
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,

INC., petitioners, vs. HONORABLE SECRETARY EDUARDO
ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO
C. LOMIBAO, respondents.
G.R. No. 171485

*
. May 3, 2006.
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO,

TEODORO A. CASIÑO, AGAPITO A. AQUINO, MARIO J.
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R.
MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
_______________
http://www.central.com.ph/sfsreader/session/00000165e7c65677d947ac60003600fb002c009e/t/?o=False 1/145
* EN BANC.
161
VOL. 489, MAY 3, 2006 161

LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF

CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, petitioners, vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO
J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF PNP, respondents.
G.R. No. 171483. May 3, 2006.*
KILUSANG MAYO UNO, REPRESENTED BY ITS

CHAIRPERSON ELMER C. LABOG AND SECRETARY
GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF
LABOR UNIONS—KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO,
JR., AND ROQUE M. TAN, petitioners, vs. HER EXCELLENCY,
PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR
GENERAL, ARTURO LOMIBAO, respondents.
G.R. No. 171400. May 3, 2006.*
ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs.

EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, respondents.
G.R. No. 171489. May 3, 2006.*
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,

ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P.
LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAG-
162

CUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE

PHILIPPINES (IBP), petitioners, vs. HON. EXECUTIVE
SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, respondents.
G.R. No. 171424. May 3, 2006.*
LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-

ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, respondents.
Constitutional Law; Separation of Powers; Checks and Balances;

Judicial Review; One of the greatest contributions of the American system
to this country is the concept of judicial review enunciated in Marbury v.
Madison, 1 Cranch 137 (1803).—One of the greatest contributions of the
American system to this country is the concept of judicial review enunciated
in Marbury v. Madison, 1 Cranch 137 (1803). This concept rests on the
extraordinary simple foundation—The Constitution is the supreme law. It
was ordained by the people, the ultimate source of all political authority. It
confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the people
as expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.
Same; Same; Same; Same; Requisites; The power of judicial review

does not repose upon the courts a “self-starting capacity.”—The power of
judicial review does not repose upon the courts a “self-
163
VOL. 489, MAY 3, 2006 163

starting capacity.” Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or controversy;
second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth,
the decision of the constitutional question must be necessary to the
determination of the case itself.
Same; Same; Same; Same; Same; Words and Phrases; An actual case
or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution—it is “definite and concrete, touching the
legal relations of parties having adverse legal interest,” a real and
substantial controversy admitting of specific relief.—An actual case or
controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is “definite and concrete, touching the
legal relations of parties having adverse legal interest”; a real and substantial
controversy admitting of specific relief. The Solicitor General refutes the
existence of such actual case or controversy, contending that the present
petitions were rendered “moot and academic” by President Arroyo’s
issuance of PP 1021.
Same; Same; Same; Same; Same; Moot and Academic Questions; The
“moot and academic” principle is not a magical formula that can
automatically dissuade the courts in resolving a case; Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution, second, the exceptional character of the situation and the
paramount public interest is involved, third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar,
and the public, and fourth, the case is capable of repetition yet evading
review.—A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness. The Court
holds that President Arroyo’s issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do
they justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that “an
unconstitutional act is not a law,
164
it confers no rights, it imposes no duties, it affords no protection; it is in

legal contemplation, inoperative.” The “moot and academic” principle is not
a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution; second, the exceptional character of
the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.
Same; Same; Same; Same; Same; Locus Standi; Words and Phrases;
Locus standi is defined as “a right of appearance in a court of justice on a
given question.”—Locus standi is defined as “a right of appearance in a
court of justice on a given question.” In private suits, standing is governed
by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that “every action
must be prosecuted or defended in the name of the real party in interest.”
Accordingly, the “real-party-in interest” is “the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.” Succinctly put, the plaintiff’s standing is based on his
own right to the relief sought.
Same; Same; Same; Same; Same; Same; The difficulty of determining

locus standi arises in public suits, as here, the plaintiff who asserts a
“public right” in assailing an allegedly illegal official action, does so as a
representative of the general public.—The difficulty of determining locus
standi arises in public suits. Here, the plaintiff who asserts a “public right”
in assailing an allegedly illegal official action, does so as a representative of
the general public. He may be a person who is affected no differently from
any other person. He could be suing as a “stranger,” or in the category of a
“citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is
entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of
relief as a “citizen” or “taxpayer.
Same; Same; Same; Same; Same; Same; Taxpayer’s Suits; Citizen’s

Suits; The plaintiff in a taxpayer’s suit is in a different category from the
plaintiff in a citizen’s suit—in the former, the plaintiff is
165
VOL. 489, MAY 3, 2006 165
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern.—Case law in most jurisdictions now
allows both “citizen” and “taxpayer” standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that
the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in
a citizen’s suit. In the former, the plaintiff is affected by the expenditure of
public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v.
Collins: “In matter of mere public right, however . . . the people are the real
parties . . . It is at least the right, if not the duty, of every citizen to interfere
and see that a public offence be properly pursued and punished, and that a
public grievance be remedied.” With respect to taxpayer’s suits, Terr v.
Jordanheld that “the right of a citizen and a taxpayer to maintain an action
in courts to restrain the unlawful use of public funds to his injury cannot be
denied.”
Same; Same; Same; Same; Same; Same; Same; Same; “Direct Injury”
Test; To prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United
States Supreme Court laid down the more stringent “direct injury” test,
which test has been adopted in this jurisdiction.—To prevent just about any
person from seeking judicial interference in any official policy or act with
which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid
down the more stringent “direct injury” test in Ex Parte Levitt, later
reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public. This Court adopted the
“direct injury” test in our jurisdiction. In People v. Vera, 65 Phil. 56 (1937),
it held that the person who impugns the validity of a statute must have “a
personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result.” The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.
166
Same; Same; Same; Same; Same; Same; Being a mere procedural

technicality, the requirement of locus standi may be waived by the Court in
the exercise of its discretion, such as in cases of “transcendental

importance,” or where the issues raised have “far-reaching
implications.”—Being a mere procedural technicality, the requirement of
locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,
84 Phil. 368 (1949), where the “transcendental importance” of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, 62 SCRA 275 (1975), this Court resolved
to pass upon the issues raised due to the “far-reaching implications” of the
petition notwithstanding its categorical statement that petitioner therein had
no personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
Same; Same; Same; Same; Same; Same; Requisites in order that

Taxpayers, Voters, Concerned Citizens and Legislators may be Accorded
Standing to Sue; Recent decisions show a certain toughening in the Court’s
attitude toward legal standing.—By way of summary, the following rules
may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met: (1) cases involve
constitutional issues; (2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is unconstitutional; (3)
for voters, there must be a showing of obvious interest in the validity of the
election law in question; (4) for concerned citizens, there must be a showing
that the issues raised are of transcendental importance which must be settled
early; and (5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators. Significantly,
recent decisions show a certain toughening in the Court’s attitude toward
legal standing.
Same; Same; Same; Same; Same; Same; It is in the interest of justice

that those affected by Presidential Proclamation (PP) 1017 can be
represented by their Congressmen in bringing to the attention of the Court
the alleged violations of their basic rights.—In G.R. No.
167
VOL. 489, MAY 3, 2006 167
171485, the opposition Congressmen alleged there was usurpation of

legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice
that those affected by PP 1017 can be represented by their Congressmen in

bringing to the attention of the Court the alleged violations of their basic
rights.
Same; Same; Same; Same; Same; Same; When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest
in the execution of the laws.—In G.R. No. 171400, (ALGI), this Court
applied the liberality rule in Philconsa v. Enriquez, 235 SCRA 506 (1994),
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, Basco v. Philippine Amusement and Gaming Corporation,
197 SCRA 52 (1991), and Tañada v. Tuvera, 136 SCRA 27 (1985), that
when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
Same; Same; Same; Same; Same; Same; Organizations may be granted

standing to assert the rights of their members.—In G.R. No. 171483,
KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their members. We take
judicial notice of the announcement by the Office of the President banning
all rallies and canceling all permits for public assemblies following the
issuance of PP 1017 and G.O. No. 5.
Same; Same; Same; Same; Same; Same; National officers of the

Integrated Bar of the Philippines (IBP) have no legal standing where they
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP 1017 and
G.O. No. 5.—In G.R. No. 171489, petitioners, Cadiz, et al., who are national
officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which the IBP
as an institution or its members may suffer as a consequence of the issuance
of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora, 338 SCRA 81 (2000), the Court held that the mere invocation by
the IBP of its
168
duty to preserve the rule of law and nothing more, while undoubtedly true,
is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However,
in view of the transcendental importance of the issue, this Court declares
that petitioner have locus standi.
Same; Same; Same; Same; Same; Same; The claim of a petitioner that
she is a media personality does not aid her where there is no showing that
the enforcement of the issuances in question prevented her from pursuing
her occupation, and neither does her submission that she has a pending
electoral protest before the Presidential Electoral Tribunal have any
relevance where she has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case.—In G.R. No. 171424, Loren Legarda has
no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue as a legislator
on the allegation that her prerogatives as a lawmaker have been impaired by
PP 1017 and G.O. No. 5. Her claim that she is a media personality will not
likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that
she has pending electoral protest before the Presidential Electoral Tribunal
is likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.
Same; Same; Same; Presidency; Parties; It is not proper to implead

President Arroyo as respondent—settled is the doctrine that the President,
during his tenure of office or actual incumbency, may not be sued in any
civil or criminal case, and there is no need to provide for it in the
Constitution or law; It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations
while serving as such.—It is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency, may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such. Furthermore,
it
169
VOL. 489, MAY 3, 2006 169
is important that he be freed from any form of harassment, hindrance or

distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone.
Like any other official, he remains accountable to the people but he may be
removed from office only in the mode provided by law and that is by
impeachment.
Presidency; Calling-Out Power; Declaration of State of National

Emergency; Petitioners failed to show that President Arroyo’s exercise of
the calling-out power, by issuing PP 1017, is totally bereft of factual basis.
—As to how the Court may inquire into the President’s exercise of power,
Lansang adopted the test that “judicial inquiry can go no further than to
satisfy the Court not that the President’s decision is correct,” but that “the
President did not act arbitrarily.” Thus, the standard laid down is not
correctness, but arbitrariness. In Integrated Bar of the Philippines, this
Court further ruled that “it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis” and that if he fails, by
way of proof, to support his assertion, then “this Court cannot undertake an
independent investigation beyond the pleadings.” Petitioners failed to show
that President Arroyo’s exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor General’s
Consolidated Comment and Memorandum shows a detailed narration of the
events leading to the issuance of PP 1017, with supporting reports forming
part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the
communist leaders. There was also the Minutes of the Intelligence Report
and Security Group of the Philippine Army showing the growing alliance
between the NPA and the military. Petitioners presented nothing to refute
such events. Thus, absent any contrary allegations, the Court is convinced
that the President was justified in issuing PP 1017 calling for military aid.
170
Same; Same; Same; In times of emergency, our Constitution

reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.—In the
final analysis, the various approaches to emergency of the above political
theorists—from Lock’s “theory of prerogative,” to Watkins’ doctrine of
“constitutional dictatorship” and, eventually, to McIlwain’s “principle of
constitutionalism”—ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such powers will be exercised with
a sense of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting the
1987 Constitution, endeavored to create a government in the concept of
Justice Jackson’s “balanced power structure.” Executive, legislative, and
judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is
given a role to serve as limitation or check upon the other. This system does
not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.
Same; Same; Same; Freedom of Expression; Facial Challenges;

Overbreadth Doctrine; The overbreadth doctrine is an analytical tool
developed for testing “on their faces” statutes in free speech cases, also
known under the American Law as First Amendment cases; A plain reading
of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct—it is actually a call upon the AFP to prevent or suppress
all forms of lawless violence.—A facial review of PP 1017, using the
overbreadth doctrine, is uncalled for. First and foremost, the overbreadth
doctrine is an analytical tool developed for testing “on their faces” statutes
in free speech cases, also known under the American Law as First
Amendment cases. A plain reading of PP 1017 shows that it is not primarily
directed to speech or even speech-related conduct. It is actually a call upon
the AFP to prevent
171
VOL. 489, MAY 3, 2006 171
or suppress all forms of lawless violence. In United States v. Salerno, the US

Supreme Court held that “we have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First Amendment” (freedom of speech).
Same; Same; Same; Same; Same; Same; The overbreadth doctrine is

not intended for testing the validity of a law that “reflects legitimate state
interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct”—“overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct.”—The overbreadth doctrine is not intended
for testing the validity of a law that “reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct.” Undoubtedly, lawless violence, insurrection and
rebellion are considered “harmful” and “constitutionally unprotected

conduct.” In Broadrick v. Oklahoma, it was held: It remains a ‘matter of no
little difficulty’ to determine when a law may properly be held void on its
face and when ‘such summary action’ is inappropriate. But the plain import
of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward conduct and
that conduct—even if expressive—falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only “spoken words” and again, that
“overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
regulation.
Same; Same; Same; Same; Same; Same; Facial invalidation of laws is

considered as “manifestly strong medicine,” to be used “sparingly and only
as a last resort,” and is “generally disfavored.”—Facial invalidation of
laws is considered as “manifestly strong medicine,” to be used “sparingly
and only as a last resort,” and is “generally disfavored”; The reason for this
is obvious. Embedded in the traditional
172
rules governing constitutional adjudication is the principle that a person to

whom a law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to others, i.e.,
in other situations not before the Court. A writer and scholar in
Constitutional Law explains further: The most distinctive feature of the
overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to
a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute “on its face,” not merely “as applied for” so
that the overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the “chilling;”
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s “very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
Same; Same; Same; Same; Same; Same; “Void for Vagueness”

Doctrine; Related to the “overbreadth” doctrine is the “void for vagueness
doctrine” which holds that “a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application,” and like overbreadth, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications.—
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted. Related to the “overbreadth” doctrine
is the “void for vagueness doctrine” which holds that “a law is facially
invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application.” It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for
testing “on their faces” statutes in free speech cases. And like overbreadth,
it is said that a litigant may challenge a statute on its face only if it is vague
in all its possible applications. Again, petitioners did not even at-
173
VOL. 489, MAY 3, 2006 173
tempt to show that PP 1017 is vague in all its application. They also failed
to establish that men of common intelligence cannot understand the
meaning and application of PP 1017. Same; Same; Same; Under the calling-
out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion.—Under the calling-
out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the President’s calling-out
power is considered illegal or ultra vires. For this reason, a President must
be careful in the exercise of his powers. He cannot invoke a greater power
when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
Same; Same; Same; In declaring a state of national emergency,

President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion but also relied on Section 17, Article XII, a
provision on the State’s extraordinary power to take over privately-owned

public utility and business affected with public interest—indeed, PP 1017
calls for the exercise of an awesome power.—President Arroyo’s declaration
of a “state of rebellion” was merely an act declaring a status or condition of
public moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than
that. In declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision calling
on the AFP to prevent or suppress lawless violence, invasion or rebellion.
She also relied on Section 17, Article XII, a provision on the State’s
extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of an
awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Same; Same; Same; Martial Law; PP 1017 is not a declaration of

Martial Law—it is plain therein that what the President invoked was her
calling-out power.—Some of the petitioners vehemently
174
maintain that PP 1017 is actually a declaration of Martial Law. It is no so.

What defines the character of PP 1017 are its wordings. It is plain therein
that what the President invoked was her calling-out power. The declaration
of Martial Law is a “warn[ing] to citizens that the military power has been
called upon by the executive to assist in the maintenance of law and order,
and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law.”
Same; Same; Same; Same; A reading of PP 1017 operative clause

shows that it was lifted from Former President Marcos’ Proclamation No.
1081; We all know that it was PP 1081 which granted President Marcos
legislative powers.—A reading of PP 1017 operative clause shows that it
was lifted from Former President Marcos’ Proclamation No. 1081, which
partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to

all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction. We all know that it was PP 1081 which
granted President Marcos legislative power. Its enabling clause states: “to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.” Upon the other hand,
the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.”
Same; Same; Same; Presidential Decrees; President Arroyo’s

ordinance power is limited to Executive Orders, Administrative Orders,
Proclamations, Memorandum Orders, Memorandum Circulars, and General
or Special Orders—she cannot issue decrees similar to those issued by
Former President Marcos under PP 1081.—The President is granted an
Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may
175
VOL. 489, MAY 3, 2006 175
issue any of the following: Sec. 2. Executive Orders.—Acts of the President

providing for rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in
executive orders. Sec. 3. Administrative Orders.—Acts of the President
which relate to particular aspect of governmental operations in pursuance of
his duties as administrative head shall be promulgated in administrative
orders. Sec. 4. Proclamations.—Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of
an executive order. Sec. 5. Memorandum Orders.—Acts of the President on
matters of administrative detail or of subordinate or temporary interest
which only concern a particular officer or office of the Government shall be
embodied in memorandum orders. Sec. 6. Memorandum Circulars.—Acts
of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars. Sec. 7. General
or Special Orders.—Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued
as general or special orders. President Arroyo’s ordinance power is limited
to the foregoing issuances. She cannot issue decrees similar to those issued
by Former President Marcos under PP 1081. Presidential Decrees are laws
which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during
the period of Martial Law under the 1973 Constitution.
Same; Same; Same; Same; PP 1017 is unconstitutional insofar as it

grants President Arroyo the authority to promulgate “decrees.”—This
Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate “decrees.”
Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that “[t]he legislative power shall
be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives.” To be sure, neither Martial Law
nor a state of rebellion nor a state of emergency can justify President
Arroyo’s exercise of legislative power by issuing decrees.
176
Same; Same; Same; Same; With respect to “laws,” President Arroyo

cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on
obligations and contracts and the like—she can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.—As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to “laws,” she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty
to suppress lawless violence.
Same; Same; Same; President Arroyo could validly declare the

existence of a state of national emergency even in the absence of a
Congressional enactment but the exercise of emergency powers, such as the
taking over of privately owned public utility or business affected with public
interest, is a different matter.—It may be pointed out that the second
paragraph of the above provision refers not only to war but also to “other
national emergency.” If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a “state of national
emergency” pursuant to Section 18, Article VII (calling-out power) and
grant it to Congress (like the declaration of the existence of a state of war),
then the Framers could have provided so. Clearly, they did not intend that
Congress should first authorize the President before he can declare a “state
of national emergency.” The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in

the absence of a Congressional enactment. But the exercise of emergency
powers, such as the taking over of privately owned public utility or business
affected with public interest, is a different matter. This requires a delegation
from Congress.
Same; Same; Same; Considering that Section 17 of Article XII and

Section 23 of Article VI, previously quoted, relate to national emergencies,
they must be read together to determine the limitation of the exercise of
emergency powers.—Courts have often said that constitutional provisions in
pari materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a
177
VOL. 489, MAY 3, 2006 177
constitution which relate to the same subject matter will be construed

together and considered in the light of each other. Considering that Section
17 of Article XII and Section 23 of Article VI, previously quoted, relate to
national emergencies, they must be read together to determine the limitation
of the exercise of emergency powers.
Same; Same; Same; Emergency Powers; Requisites for Valid

Delegation; Generally, Congress is the repository of emergency powers.—
Generally, Congress is the repository of emergency powers. This is evident
in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus: (1)
There must be a war or other emergency. (2) The delegation must be for a
limited period only. (3) The delegation must be subject to such restrictions
as the Congress may prescribe. (4) The emergency powers must be
exercised to carry out a national policy declared by Congress.
Same; Same; Same; Same; Section 17, Article XII must be understood
as an aspect of the emergency powers clause, and the taking over of private
business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress—Section 17 refers to Congress,
not the President.—Section 17, Article XII must be understood as an aspect
of the emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the “the
State may, during the emergency and under reasonable terms prescribed by
it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest,” it refers to Congress,
not the President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him pursuant to
a law prescribing the reasonable terms thereof.
Same; Same; Same; Same; Words and Phrases; Emergency, as a

generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that
178
which is accepted as normal—implicit in this definitions are the elements of

intensity, variety, and perception; Emergencies, as perceived by legislature
or executive in the United States since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a)
economic, b) natural disaster, and c) national security; “Emergency,” as
contemplated in our Constitution, may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.—Petitioner Cacho-Olivares, et al.
contends that the term “emergency” under Section 17, Article XII refers to
“tsunami,” “typhoon,” “hurricane” and “similar occurrences.” This is a
limited view of “emergency.” Emergency, as a generic term, connotes the
existence of conditions suddenly intensifying the degree of existing danger
to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception.
Emergencies, as perceived by legislature or executive in the United States
since 1933, have been occasioned by a wide range of situations, classifiable
under three (3) principal heads: a) economic, b) natural disaster, and c)
national security. “Emergency,” as contemplated in our Constitution, is of
the same breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.
Same; Same; Same; Same; While the President alone can declare a
state of national emergency, however, without legislation, he has no power
to take over privately-owned public utility or business affected with public
interest.—Following our interpretation of Section 17, Article XII, invoked
by President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress. Let
it be emphasized that while the President alone can declare a state of

national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses
179
VOL. 489, MAY 3, 2006 179
affected with public interest that should be taken over. In short, the President
has no absolute authority to exercise all the powers of the State under
Section 17, Article VII in the absence of an emergency powers act passed by
Congress.
Same; Same; Same; Same; One of the misfortunes of an emergency,

particularly, that which pertains to security, is that military necessity and
the guaranteed rights of the individual are often not compatible.—One of
the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and
the freedom of speech, of expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow.
Same; Same; Same; Judicial Review; Courts are not at liberty to

declare statutes invalid although they may be abused and misabused and
may afford an opportunity for abuse in the manner of application—the
validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects
in a particular case.—Settled is the rule that courts are not at liberty to
declare statutes invalid although they may be abused and misabused and
may afford an opportunity for abuse in the manner of application. The
validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects
in a particular case. PP 1017 is merely an invocation of the President’s
calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the
end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens’ constitutional rights. Now, may
this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by
which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result
arising from its exertion. This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this
180
were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal
Code would have been declared unconstitutional a long time ago.
Same; Same; Same; General orders are “acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines”—they are internal rules issued by the executive officer to
his subordinates precisely for the proper and efficient administration of law.
—President Arroyo issued G.O. No. 5 to carry into effect the provisions of
PP 1017. General orders are “acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.”
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them. They are based on and are the product
of, a relationship in which power is their source, and obedience, their object.
For these reasons, one requirement for these rules to be valid is that they
must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the
AFP and the PNP to immediately carry out the “necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless
violence.”
Same; Same; Same; Searches and Seizures; The plain import of the
language of the Constitution is that searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant
or warrant of arrest.—The Constitution provides that “the right of the
people to be secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
persons or things to be seized.”The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable

unless authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that between
person and police must stand the protec-
181
VOL. 489, MAY 3, 2006 181
tive authority of a magistrate clothed with power to issue or refuse to issue

search warrants or warrants of arrest.
Same; Same; Same; Right of Assembly; Words and Phrases;

“Assembly” means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs—it is a necessary consequence of
our republican institution and complements the right of speech; The right of
the people to peaceably assemble is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent.—”Assembly” means a right on the part of
the citizens to meet peaceably for consultation in respect to public affairs. It
is a necessary consequence of our republican institution and complements
the right of speech. As in the case of freedom of expression, this right is not
to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be
held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
Same; Same; Same; Same; Peaceable assembly cannot be made a

crime.—The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880
were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon, it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the
182
bounds of the freedom of speech which the Constitution protects. If the

persons assembling have committed crimes elsewhere, if they have formed
or are engaged in a conspiracy against the public peace and order, they may
be prosecuted for their conspiracy or other violations of valid laws. But it is
a different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
Same; Same; Same; Same; The wholesale cancellation of all permits to

rally is a blatant disregard of the principle that “freedom of assembly is not
to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent”—tolerance
is the rule and limitation is the exception.—On the basis of the above
principles, the Court likewise considers the dispersal and arrest of the
members of KMU, et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacañang’s directive canceling
all permits previously issued by local government units. This is arbitrary.
The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that “freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
the State has a right to prevent.” Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizens’ right to exercise it.
Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With
the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Same; Same; Same; Same; Under BP 880, the authority to regulate

assemblies and rallies is lodged with the local government units; When a
person’s right is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and according
to procedure.—Under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the power to
issue permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits.
183
VOL. 489, MAY 3, 2006 183
The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a person’s right is restricted by
government action, it behooves a democratic government to see to it that the
restriction is fair, reasonable, and according to procedure.
Same; Same; Same; Searches and Seizures; The warrantless search of

the Daily Tribune’s offices is illegal.—G.R. No. 171409, (Cacho-Olivares, et
al.) presents another facet of freedom of speech i.e., the freedom of the
press. Petitioners’ narration of facts, which the Solicitor General failed to
refute, established the following: first, the Daily Tribune’s offices were
searched without warrant; second, the police operatives seized several
materials for publication; third, the search was conducted at about 1:00 o’
clock in the morning of February 25, 2006; fourth, the search was conducted
in the absence of any official of the Daily Tribune except the security guard
of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices. x x x The search is illegal. Rule 126 of The
Revised Rules on Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the
search of a house, room, or any other premise be made in the presence of the
lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the property is on the
person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.
Same; Same; Same; Same; Freedom of the Press; The search of the
Daily Tribune’s offices also violated freedom of the press; The best gauge of
a free and democratic society rests in the degree of freedom enjoyed by its
media.—The search violated petitioners’ freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom
enjoyed by its media. In the Burgos v. Chief of Staff this Court held that—As
heretofore stated, the premises searched were the business and printing
offices of the “Metropolitan
184
Mail” and the “We Forum” newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners’ freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Same; Same; Same; Same; Same; The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media,
are plain censorship—it is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so,
and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey; The Supreme Court cannot
tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens—freedom to comment on public affairs is
essential to the vitality of a representative democracy.—While admittedly,
the Daily Tribune was not padlocked and sealed like the “Metropolitan
Mail” and “We Forum” newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to
disobey.Undoubtedly, the The Daily Tribune was subjected to these arbitrary
intrusions because of its anti-government sentiments. This Court cannot
tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the
courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta
principiis.
185
VOL. 489, MAY 3, 2006 185
Same; Same; Same; PP 1017 is constitutional insofar as it constitutes a

call by the President for the AFP to prevent or suppress lawless violence but
PP 1017’s extraneous provisions giving the President express or implied
power (1) to issue decrees, (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees
promulgated by the President, and (3) to impose standards on media or any
form of prior restraint on the press, are ultra vires and unconstitutional.—
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017’s extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws
even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior
restraint on the press, are ultra vires and unconstitutional. The Court also
rules that under Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privately-owned public utility
and private business affected with public interest.
Same; Same; Same; Words and Phrases; The words “acts of terrorism”
found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O.—The Court
finds G.O. No. 5 valid. It is an Order issued by the President—acting as
Commander-in-Chief—addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard—that
the military and the police should take only the “necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence.” But
the words “acts of terrorism” found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While “terrorism” has been denounced generally
in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP’s authority in carrying out this
portion of G.O. No. 5.
Same; Same; Same; It is well to remember that military power is a

means to an end and substantive civil rights are ends in themselves; How to
give the military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the
186

eternal balancing tasks of a democratic state; Two vital principles of

constitutionalism: the maintenance of legal limits to arbitrary power, and,
political responsibility of the government to the governed.—It is well to
remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to
protect the Republic without unnecessarily trampling individual rights is
one of the eternal balancing tasks of a democratic state. During emergency,
governmental action may vary in breadth and intensity from normal times,
yet they should not be arbitrary as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.
PANGANIBAN, C.J., Concurring Opinion:
Presidency; Declaration of a State of National Emergency; Judicial

Review; Supreme Court; Some of those who drafted PP 1017 may be testing
the outer limits of presidential prerogatives and the perseverance of the
Supreme Court in safeguarding the people’s constitutionally enshrined
liberty.—The Dissent dismisses all the Petitions, grants no reliefs to
petitioners, and finds nothing wrong with PP 1017. It labels the PP a
harmless pronouncement—“an utter superfluity”—and denounces the
ponencia as an “immodest show of brawn” that “has imprudently placed the
Court in the business of defanging paper tigers.” Under this line of thinking,
it would be perfectly legal for the President to reissue PP 1017 under its
present language and nuance. I respectfully disagree. Let us face it. Even
Justice Tinga concedes that under PP 1017, the police—“to some
minds”—“may have flirted with power.” With due respect, this is a
masterful understatement. PP 1017 may be a paper tiger, but—to borrow the
colorful words of an erstwhile Asian leader—it has nuclear teeth that must
indeed be defanged. Some of those who drafted PP 1017 may be testing the
outer limits of presidential prerogatives and the perseverance of this Court
in safeguarding the people’s constitutionally enshrined liberty. They are
playing with fire, and unless prudently restrained, they may one day
wittingly or unwittingly burn down the country. History will never forget,
much less
187
VOL. 489, MAY 3, 2006 187
forgive, this Court if it allows such misadventure and refuses to strike down
abuse at its inception. Worse, our people will surely condemn the misuse of
legal hocus pocus to justify this trifling with constitutional sanctities.
YNARES-SANTIAGO, J., Concurring Opinion:
Presidency; Declaration of a State of National Emergency; Section 17,

Article XII provision is not self-executing as to be validly invoked by the
President without congressional authorization—the President, with all the
powers vested in her by Article VII, cannot arrogate unto herself the power
to take over or direct the operation of any privately owned public utility or
business affected with public interest without Congressional authorization.
—The use of the word “State” as well as the reference to “reasonable terms”
under Section 17, Article XII can only pertain to Congress. In other words,
the said provision is not self-executing as to be validly invoked by the
President without congressional authorization. The provision merely
declares a state economic policy during times of national emergency. As
such, it cannot be taken to mean as authorizing the President to exercise
“takeover” powers pursuant to a declaration of a state of national
emergency. The President, with all the powers vested in her by Article VII,
cannot arrogate unto herself the power to take over or direct the operation of
any privately owned public utility or business affected with public interest
without Congressional authorization. To do so would constitute an ultra
vires act on the part of the Chief Executive, whose powers are limited to the
powers vested in her by Article VII, and cannot extend to Article XII
without the approval of Congress. Thus, the President’s authority to act in
times of national emergency is still subject to the limitations expressly
prescribed by Congress. This is a featured component of the doctrine of
separation of powers, specifically, the principle of checks and balances as
applicable to the political branches of government, the executive and the
legislature.
Same; Same; Freedom of Speech; We should bear in mind that in a

democracy, constitutional liberties must always be accorded supreme
importance in the conduct of daily life; It is the function of speech to free
men from the bondage of irrational fear.—It cannot be gainsaid that
government action to stifle constitutional liberties guaranteed under the Bill
of Rights cannot be preemptive in meeting any and all perceived or potential
threats to the life of the nation.
188
Such threats must be actual, or at least gravely imminent, to warrant

government to take proper action. To allow government to preempt the
happening of any event would be akin to “putting the cart before the horse,”
in a manner of speaking. State action is proper only if there is a clear and
present danger of a substantive evil which the state has a right to prevent.
We should bear in mind that in a democracy, constitutional liberties must
always be accorded supreme importance in the conduct of daily life. At the
heart of these liberties lies freedom of speech and thought—not merely in
the propagation of ideas we love, but more importantly, in the advocacy of
ideas we may oftentimes loathe. As succinctly articulated by Justice Louis
D. Brandeis: Fear of serious injury cannot alone justify suppression of free
speech and assembly. x x x It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech there must
be reasonable ground to believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the evil to be prevented is a
serious one. x x x But even advocacy of violation, however reprehensible
morally, is not a justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a finding of clear and
present danger it must be shown either that immediate serious violence was
to be expected or was advocated, or that the past conduct furnished reason
to believe that such advocacy was then contemplated.
TINGA, J., Dissenting Opinion:
Supreme Court; Judicial Review; The majority, by its ruling, has

imprudently placed the Court in the business of defanging paper tigers.—I
regret to say that the majority, by its ruling today, has imprudently placed
the Court in the business of defanging paper tigers. The immodest show of
brawn unfortunately comes at the expense of an exhibition by the Court of a
fundamental but sophisticated understanding of the extent and limits of
executive powers and prerogatives, as well as those assigned to the judicial
branch. I agree with the majority on some points, but I cannot join the
majority opinion, as it proceeds to rule on non-justiciable issues based on
fears that have not materialized, departing as they do from the plain
189
VOL. 489, MAY 3, 2006 189
language of the challenged issuances to the extent of second-guessing the

Chief Executive. I respectfully dissent.
Presidency; Calling-Out Power; The “calling-out” of the police does

not derive from the commander-in-chief clause but from the power of the
President as Chief Executive under Section 1, Article VII, and the power of
executive control under Section 18, Article VII.—Insofar as PP 1017 is
concerned, the calling out power is definitely involved, in view of the
directive to the Armed Forces of the Philippines to “suppress all forms of
lawless violence.” But there are nuances to the calling out power invoked in
PP 1017 which the majority does not discuss. The directive “to suppress all
forms of lawless violence” is addressed not only to the Armed Forces but to
the police as well. The “calling out” of the police does not derive from
Section 17, Article VII, or the commander-in-chief clause, our national
police being civilian in character. Instead, the calling out of the police is
sourced from the power of the President as Chief Executive under Section 1,
Article VII, and the power of executive control under Section 18, Article
VII. Moreover, while the permissible scope of military action is limited to
acts in furtherance of suppressing lawless violence, rebellion, invasion, the
police can be commanded by the President to execute all laws without
distinction in light of the presidential duty to execute all laws.
Same; Same; Declaration of a State of National Emergency; Neither

the declaration of a state of emergency under PP 1017 nor the invocation of
the calling out power therein authorizes warrantless arrests, searches or
seizures; the infringement of the right to free expression, peaceable
assembly and association and other constitutional or statutory rights.—If it
cannot be made more clear, neither the declaration of a state of emergency
under PP 1017 nor the invocation of the calling out power therein authorizes
warrantless arrests, searches or seizures; the infringement of the right to free
expression, peaceable assembly and association and other constitutional or
statutory rights. Any public officer who nonetheless engaged or is engaging
in such extra-constitutional or extra-legal acts in the name of PP 1017 may
be subjected to the appropriate civil, criminal or administrative liability.
Same; Same; Same; Unlike in the 1987 Constitution, which was

appropriately crafted with an aversion to the excesses of Marcosian martial
rule, the 1935 Constitution under which PP 1081 was issued
190
left no intervening safeguards that tempered or limited the declaration of

martial law.—Let us examine the differences between PP No. 1081 and PP
1017. First, while PP 1017 merely declared the existence of a state of
rebellion, an act ultimately observational in character, PP 1081 “placed the
entire Philippines under martial law,” an active implement that, by itself,

substituted civilian governmental authority with military authority. Unlike in
the 1986 Constitution, which was appropriately crafted with an aversion to
the excesses of Marcosian martial rule, the 1935 Constitution under which
PP 1081 was issued left no intervening safeguards that tempered or limited
the declaration of martial law. Even the contrast in the verbs used, “place”
as opposed to “declare,” betrays some significance. To declare may be
simply to acknowledge the existence of a particular condition, while to
place ineluctably goes beyond mere acknowledgement, and signifies the
imposition of the actual condition even if it did not exist before.
Same; Same; Same; Words and Phrases; “Laws and decrees” in PP

1017 do not relate only to those promulgated by President Arroyo, but other
laws enacted by past sovereigns, whether they be in the form of the Marcos
presidential decrees, or acts enacted by the American Governor-General
such as the Revised Penal Code.—Further proof that “laws and decrees”
stand as a class distinct from “orders and regulations” is the qualifying
phrase “promulgated by me,” which necessarily refers only to orders and
regulations. Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by President
Arroyo since she assumed office in 2001. “Laws and decrees” do not relate
only to those promulgated by President Arroyo, but other laws enacted by
past sovereigns, whether they be in the form of the Marcos presidential
decrees, or acts enacted by the American Governor-General such as the
Revised Penal Code. Certainly then, such a qualification sufficiently
addresses the fears of the majority that PP 1017 somehow empowers or
recognizes the ability of the current President to promulgate decrees.
Instead, the majority pushes an interpretation that, if pursued to its logical
end, suggests that the President by virtue of PP 1017 is also arrogating unto
herself, the power to promulgate laws, which are in the mold of enactments
from Congress. Again, in this respect, the grouping of “laws” and “decrees”
separately from “orders” and “regulations” signifies that the President
191
VOL. 489, MAY 3, 2006 191
has not arrogated unto herself the power to issue decrees in the mold of the
infamous Marcos decrees.
Same; The unique nature of the office affords the President the
opportunity to profoundly influence the public discourse, not necessarily
through the enactment or enforcement of laws, but specially by the mere
expediency of taking a stand on the issues of the day.—The unique nature of
the office affords the President the opportunity to profoundly influence the
public discourse, not necessarily through the enactment or enforcement of

laws, but specially by the mere expediency of taking a stand on the issues of
the day. Indeed, the President is expected to exercise leadership not merely
through the proposal and enactment of laws, but by making such vital
stands. U.S. President Theodore Roosevelt popularized the notion of the
presidency as a “bully pulpit,” in line with his belief that the President was
the steward of the people limited only by the specific restrictions and
prohibitions appearing in the Constitution, or impleaded by Congress under
its constitutional powers.
Same; The President, as head of state, very well has the capacity to use
the office to garner support for those great national quests that define a
civilization.—Yet the President is not precluded, in the exercise of such role,
to be merely responsive. The popular expectation in fact is of a pro-active,
dynamic chief executive with an ability to identify problems or concerns at
their incipience and to respond to them with all legal means at the earliest
possible time. The President, as head of state, very well has the capacity to
use the office to garner support for those great national quests that define a
civilization, as President Kennedy did when by a mere congressional
address, he put America on track to the goal of placing a man on the moon.
Those memorable presidential speeches memorized by schoolchildren may
have not, by themselves, made operative any law, but they served not only
merely symbolic functions, but help profoundly influence towards the right
direction, the public opinion in the discourse of the times. Perhaps there was
no more dramatic example of the use of the “bully pulpit” for such noble
purposes than in 1964, when an American President from Texas stood
before a Congress populated by many powerful bigots, and fully committed
himself as no other President before to the cause of civil rights with his
intonation of those lines from the civil rights anthem, “we shall overcome.”
192
Same; Declaration of a State of National Emergency; The declaration

of a state of emergency, on premises of a looming armed threat which have
hardly been disputed, falls within such proper functions of the President as
the defender of the Constitution—it was designed to inform the people of the
existence of such a threat, with the expectation that the citizenry would not
aid or abet those who would overturn through force the democratic
government.—The President as Chief Government Spokesperson of the
democratic ideals is entrusted with a heady but comfortable pursuit. But no
less vital, if somewhat graver, is the role of the President as the Chief
Defender of the democratic way of life. The “calling out” power assures the
President such capability to a great extent, yet it will not fully suffice as a
defense of democracy. There is a need for the President to rally the people to
defend the Constitution which guarantees the democratic way of life,
through means other than coercive. I assert that the declaration of a state of
emergency, on premises of a looming armed threat which have hardly been
disputed, falls within such proper functions of the President as the defender
of the Constitution. It was designed to inform the people of the existence of
such a threat, with the expectation that the citizenry would not aid or abet
those who would overturn through force the democratic government. At the
same time, the Proclamation itself does not violate the Constitution as it
does not call for or put into operation the suspension or withdrawal of any
constitutional rights, or even create or diminish any substantive rights.
Same; Same; The fact that Section 17, Article XII, is purposely
ambivalent as to whether the President may exercise the power therein with
or without congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in extreme
situations wherein obtention of congressional authority is impossible or
inexpedient considering the emergency.—I concede that it is fundamentally
sound to construe Section 17 as requiring congressional authority or
approval before the takeover under the provision may be effected. After all,
the taking over of a privately owned public utility or business affected with
public interest would involve an infringement on the right of private
enterprise to profit; or perhaps even expropriation for a limited period.
Constitutionally, the taking of property can only be accomplished with due
process of law, and the enactment of appropriate legislation prescribing the
terms and conditions under which the President may exercise the powers of
193
VOL. 489, MAY 3, 2006 193
the State under Section 17 stands as the best assurance that due process of
law would be observed. The fact that Section 17 is purposely ambivalent as
to whether the President may exercise the power therein with or without
congressional approval leads me to conclude that it is constitutionally
permissible to recognize exceptions, such as in extreme situations wherein
obtention of congressional authority is impossible or inexpedient
considering the emergency. I thus dissent to any proposition that such
requirement is absolute under all circumstances. I maintain that in such
extreme situations, the President may exercise such authority subject to
judicial review. It should be admitted that some emergencies are graver and
more imminent than others. It is not within the realm of impossibility that
by reason of a particularly sudden and grave emergency, Congress may not
be able to convene to grant the necessary congressional authority to the
President. Certainly, if bombs from a foreign invader are falling over Manila
skies, it may be difficult, not to mention unnecessarily onerous, to require

convening Congress before the President may exercise the functions under
Section 17, Article XII. The proposition of the majority may be desirable as
the general rule, but the correct rule that should be adopted by the Court
should not be so absolute so as to preclude the exercise by the President of
such power under extreme situations.
Same; Same; In truth, the Court’s pronouncement on Section 17,

Article XII, is actually obiter.—Considering that the authorized or actual
takeover under Section 17, Article XII, is not presented as a properly
justiciable issue. Nonetheless, and consistent with the general tenor, the
majority has undertaken to decide this non-justiciable issue, and to even
place their view in the dispositive portion in a bid to enshrine it as doctrine.
In truth, the Court’s pronouncement on this point is actually obiter. It is
hoped that should the issue become ripe for adjudication before this Court,
the obiter is not adopted as a precedent without the qualification that in
extreme situations wherein congressional approval is impossible or highly
impractical to obtain, the powers under Section 17, Article XII may be
authorized by the President.
Freedom of Expression; Overbreadth Doctrine; “Void for Vagueness”

Doctrine; The two concepts of vagueness and overbreadth doctrines, while
related, are distinct from each other—the doctrine of overbreadth applies
generally to statutes that infringe upon freedom
194
of speech while the “void-for-vagueness” doctrine applies to criminal laws,

not merely those that regulate speech or other fundamental constitutional
right (not merely those that regulate speech or other fundamental
constitutional rights).—As I noted in my Separate Opinion in Romualdez v.
Sandiganbayan, 435 SCRA 371, 395-406 (2004), citing Justice Kapunan,
there is a viable distinction between “void for vagueness” and “overbreadth”
which the majority sadly ignores. A view has been proffered that
“vagueness and overbreadth doctrines are not applicable to penal laws.”
These two concepts, while related, are distinct from each other. On one
hand, the doctrine of overbreadth applies generally to statutes that infringe
upon freedom of speech. On the other hand, the “void-for-vagueness”
doctrine applies to criminal laws, not merely those that regulate speech or
other fundamental constitutional right. (not merely those that regulate
speech or other fundamental constitutional rights.) The fact that a particular
criminal statute does not infringe upon free speech does not mean that a
facial challenge to the statute on vagueness grounds cannot succeed. The
distinction may prove especially crucial since there has been a long line of
cases in American Supreme Court jurisprudence wherein penal statutes have
been invalidated on the ground that they were “void for vagueness.” As I
cited in Romualdez v. Sandiganbayan, these cases are Connally v. General
Construction Co., Lanzetta v. State of New Jersey, Bouie v. City of
Columbia, Papachristou v. City of Jacksonville, Kolender v. Lawson, and
City of Chicago v. Morales. Granting that perhaps as a general rule,
overbreadth may find application only in “free speech” cases, it is on the
other hand very settled doctrine that a penal statute regulating conduct, not
speech, may be invalidated on the ground of “void for vagueness.” In
Romualdez, I decried the elevation of the suspect and radical new doctrine
that the “void for vagueness” challenge cannot apply other than in free
speech cases. My view on this point has not changed, and insofar as the
ponencia would hold otherwise, I thus dissent.
Criminal Law; Terrorism; Even without an operative law specifically

defining terrorism, the State already has the power to suppress and punish
such acts of terrorism, insofar as such acts are already punishable, as they
almost always are, in our extant general penal laws.—The majority
correctly concludes that General Order No. 5 is generally constitutional.
However, they make an unnecessary distinction with regard to “acts of
terrorism,” pointing out that
195
VOL. 489, MAY 3, 2006 195
Congress has not yet passed a law defining and punishing terrorism or acts
of terrorism. That may be the case, but does the majority seriously suggest
that the President or the State is powerless to suppress acts of terrorism until
the word “terrorism” is defined by law? Terrorism has a widely accepted
meaning that encompasses many acts already punishable by our general
penal laws. There are several United Nations and multilateral conventions
on terrorism, as well as declarations made by the United Nations General
Assembly denouncing and seeking to combat terrorism. There is a general
sense in international law as to what constitutes terrorism, even if no precise
definition has been adopted as binding on all nations. Even without an
operative law specifically defining terrorism, the State already has the
power to suppress and punish such acts of terrorism, insofar as such acts are
already punishable, as they almost always are, in our extant general penal
laws. The President, tasked with the execution of all existing laws, already
has a sufficient mandate to order the Armed Forces to combat those acts of
terrorism that are already punishable in our Revised Penal Code, such as
rebellion, coup d’etat, murder, homicide, arson, physical injuries, grave
threats, and the like. Indeed, those acts which under normal contemplation
would constitute terrorism are associated anyway with or subsumed under

lawless violence, which is a term found in the Constitution itself. Thus long
ago, the State has already seen it fit to punish such acts.
Declaration of a State of National Emergency; Judicial Review;

Searches and Seizures; The problem with directly adjudicating that the
injuries inflicted on David, et al., as illegal, would be that such would have
been done with undue haste, through an improper legal avenue, without the
appropriate trial of facts, and without even impleading the particular
officers who effected the arrests/searches/ seizures.—I respectfully disagree
with the manner by which the majority would treat the “void as applied”
argument presented by the petitioners. The majority adopts the tack of citing
three particular injuries alleged by the petitioners as inflicted with the
implementation of PP 1017. The majority analyzes the alleged injuries,
correlates them to particular violations of the Bill of Rights, and ultimately
concludes that such violations were illegal. The problem with this approach
is that it would forever deem the Court as a trier or reviewer at first instance
over questions involving the validity of warrantless arrests, searches,
seizures and the dispersal of rallies,
196
all of which entail a substantial level of factual determination. I agree that

PP 1017 does not expand the grounds for warrantless arrests, searches and
seizures or dispersal of rallies, and that the proclamation cannot be invoked
before any court to assert the validity of such unauthorized actions. Yet the
problem with directly adjudicating that the injuries inflicted on David, et al.,
as illegal, would be that such would have been done with undue haste,
through an improper legal avenue, without the appropriate trial of facts, and
without even impleading the particular officers who effected the
arrests/searches/seizures.
Same; Same; Same; While the Court will not be harmed by a symbolic
reaffirmation of commitment to the principles in the Bill of Rights, it will be
harmed by a ruling that unduly and inappropriately expands the very
limited function of the Court as a trier of facts on first instance.—I
understand that the injurious acts complained of by the petitioners upon the
implementation of PP 1017 are a source of grave concern. Indubitably, any
person whose statutory or constitutional rights were violated in the name of
PP 1017 or General Order No. 5 deserves redress in the appropriate civil or
criminal proceeding, and even the minority wishes to makes this point as
emphatically clear, if not moreso, as the majority. Yet a ruling from this
Court, without the proper factual basis or prayer for remuneration for the
injury sustained, would ultimately be merely symbolic. While the Court will
not be harmed by a symbolic reaffirmation of commitment to the principles
in the Bill of Rights, it will be harmed by a ruling that unduly and
inappropriately expands the very limited function of the Court as a trier of
facts on first instance. Same; Same; The function of the Supreme Court is to
make legal pronouncements not based on “obvious” facts, but on proven
facts.—In my dissent in Teves v. Sandiganbayan, 447 SCRA 309, 335-348
(2004), I alluded to the fact that our legal system may run counter-intuitive
in the sense that the seemingly or obviously guilty may still, after trial, be
properly acquitted or exonerated; to the extent that even an accused who
murders another person in front of live television cameras broadcast to
millions of sets is not yet necessarily guilty of the crime of murder or
homicide. Hence, the necessity of a proper trial so as to allow the entire
factual milieu to be presented, tested and evaluated before the court. In my
theoretical example, the said accused should nonetheless be acquitted if the
197
VOL. 489, MAY 3, 2006 197
presence of exempting circumstances is established. The same principle

applies in these cases. Certainly, we in the Court can all agree that PP 1017
cannot be invoked to justify acts by the police or military officers that go
beyond the Constitution and the laws. But the course of prudence dictates
that the pronouncement of such a doctrine, while enforceable in a court of
law, should not yet extend itself to specific examples that have not yet been
properly litigated. The function of this Court is to make legal
pronouncements not based on “obvious” facts, but on proven facts.
Same; By deciding non-justiciable issues and prejudging cases and

controversies without a proper trial on the merits, the majority has
diminished the potency of the Court’s constitutional power in favor of
rhetorical statements that afford no quantifiable relief—it is for the poet and
the politician to pen beautiful paeans to the people’s rights and liberties, it
is for the Court to provide for viable legal means to enforce and safeguard
these rights and liberties.—The country-wide attention that the instant
petitions have drawn should not make the Court lose focus on its principal
mission, which is to settle the law of the case. On the contrary, the highly
political nature of these petitions should serve as forewarning for the Court
to proceed ex abundante cautelam, lest the institution be unduly dragged
into the partisan mud. The credibility of the Court is ensured by making
decisions in accordance with the Constitution without regard to the
individual personalities involved; with sights set on posterity, oblivious of
the popular flavor of the day. By deciding non-justiciable issues and
prejudging cases and controversies without a proper trial on the merits, the
majority has diminished the potency of this Court’s constitutional power in

favor of rhetorical statements that afford no quantifiable relief. It is for the
poet and the politician to pen beautiful paeans to the people’s rights and
liberties, it is for the Court to provide for viable legal means to enforce and
safeguard these rights and liberties. When the passions of these times die
down, and sober retrospect accedes, the decision of this Court in these cases
will be looked upon as an extended advisory opinion.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and

Prohibition.
The facts are stated in the opinion of the Court.
198

Pacifico A. Agabin, Neri Javier Colmenares, Remegio D.

Saladero, Jr., Nenita C. Mahinay, Noel V. Neri, Pamela Mercado and
Marvic M.V.F. Leonen for petitioners.
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint;

1
practical adjustments rather than
rigid formula are necessary. Superior strength—the use of force—
cannot make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is
thus most relevant. He said: “In cases involving liberty, the scales
of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed
and the weak.” Laws and actions that restrict fundamental rights
come to the courts 2“with a heavy presumption against their
constitutional validity.”
These seven (7) consolidated petitions for certiorari and
prohibition allege that in issuing Presidential Proclamation No. 1017
(PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently
modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law be-
_______________
1 Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark—
Lecturer, Volume XIX, 1971, p. 29.
2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
199
VOL. 489, MAY 3, 2006 199

comes tyranny, 3with the degree of law, without which, liberty

becomes license?
On February 24, 2006, as the nation celebrated the 20th
Anniversary of the Edsa People Power I, President Arroyo issued
PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the

Republic of the Philippines and Commander-in-Chief of the Armed Forces
of the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: “The President . . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress . . . rebellion . . . ,” and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition

have conspired with authoritarians of the extreme Left represented by
the NDF-CPP-NPA and the extreme Right, represented by military
adventurists—the historical enemies of the democratic Philippine State
—who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
_______________
3 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-

480 B.C., who propounded universal impermanence and that all things, notably
opposites are interrelated.
200

WHEREAS, the claims of these elements have been recklessly

magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State—by
obstructing governance including hindering the growth of the economy
and sabotaging the people’s confidence in government and their faith in
the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G.O. No. 5 implementing PP

1017, thus:
WHEREAS, over these past months, elements in the political opposition

have conspired with authoritarians of the extreme Left, represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
—the historical enemies of the democratic Philippine State—and who are
now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly-constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the people’s confidence in the government and their faith in the
future of this country;
201
VOL. 489, MAY 3, 2006 201

WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme

Left and extreme Right the opening to intensify their avowed aims to bring
down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry out
the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state

of national emergency and after all these petitions had been filed, the
President lifted PP 1017. She issued Proclamation No. 1021 which
reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII
of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP) and the Philip-
202
202 SUPREME COURT REPORTS

ANNOTATED
David vs. Macapagal-
Arroyo
pine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as may
be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,

President of the Republic of the Philippines, by virtue of the powers vested
in me by law, hereby declare that the state of national emergency has
ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,

respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of
the political
4
opposition in a plot to unseat or assassinate President
Arroyo. They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present
danger.
During the oral arguments held on March 7, 2006, the Solicitor
General specified the facts leading to the issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from
petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is
to give full discretionary powers to the President in determining
the necessity of calling out the armed forces. He emphasized that
none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents’ task to state the
facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the
issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted in the Oakwood
mutiny, escaped their detention cell in Fort
_______________
4 Respondents’ Comment dated March 6, 2006.
203
VOL. 489, MAY 3, 2006 203

Bonifacio, Taguig City. In a public statement, they vowed to remain

defiant and to elude arrest at all costs. They called upon the people
to “show and proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the 5
streets in protest,
but also by wearing red bands on our left arms.”
On February 17, 2006, the authorities got hold of a document
entitled “Oplan Hackle I” which detailed plans for bombings and
attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected
targets 6 including some cabinet members and President Arroyo

herself. Upon the advice of her security, President Arroyo decided
not to attend the Alumni Homecoming. The next day, at the height
of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a
communist safehouse in Batangas province. Found in his possession
were two (2) flash disks containing minutes of the meetings between
members of the Magdalo Group and the National People’s Army
(NPA), a tape recorder, audio cassette
7
cartridges, diskettes, and
copies of subversive documents. Prior to his arrest, Lt. San Juan
announced through DZRH that the “Magdalo’s D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I.”
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to “disavow” any defection. The latter
promptly obeyed and issued a public statement: “All SAF units are
under the effective control of
_______________
5 Ibid.
6 Ibid.
7 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex
“I” of Respondents’ Consolidated Comment.
204

responsible and trustworthy officers with proven integrity and

unquestionable loyalty.”
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government
official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man codenamed Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger.
Lim said8 “it was all systems go for the planned movement against
Arroyo.”
B/Gen. Danilo Lim and Brigade Commander Col. Ariel
Querubin confided to Gen. Generoso Senga, Chief of Staff of the
Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24,

2005. According to these two (2) officers, there was no way they
could possibly stop the soldiers because they too, were breaking the
chain of command to join the forces foist to unseat the President.
However, Gen. Senga has remained faithful to his Commander-in-
Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments
in order to forge alliances with its members and key officials. NPA
spokesman Gregorio “Ka Roger” Rosal declared: “The Communist
Party and revolutionary movement and the entire people look
forward to the possibility in the coming year of accomplishing its
immediate task of bringing
_______________
8 Respondents’ Consolidated Comment.
205
VOL. 489, MAY 3, 2006 205

down the Arroyo regime; of rendering it to weaken 9

and unable to
rule that it will not take much longer to end it.”
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly
announced: “Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by
the families of AFP officers and enlisted personnel who undertake
counter-insurgency operations in the field.” He claimed that with the
forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s
ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and Bataan was
also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of
the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila
10
radicals and 25,000 more
from the provinces in mass protests.
By midnight of February 23, 2006, the President convened her
security advisers and several cabinet members to assess the gravity
of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the
chain of command remains solid and undivided. To protect the
young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire
National Capital Region.
For their part, petitioners cited the events that followed after
the issuance of PP 1017 and G.O. No. 5.
_______________
9 Ibid.
10 Ibid.
206

Immediately, the Office of the President announced the cancellation

of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary
Raul Gonzales stated that political rallies, which to the President’s
mind were organized for purposes of destabilization, are cancelled.
Presidential Chief of Staff Michael Defensor announced that
“warrantless arrests and take-over
11
of facilities, including media, can
already be implemented.”
Undeterred by the announcements that rallies and public
assemblies would not be allowed, groups of protesters (members of
Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from
various parts of Metro Manila with the intention of converging at the
EDSA shrine. Those who were already near the EDSA site were
violently dispersed by huge clusters of anti-riot police. The well-
trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and
scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and
to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally12 held
along Ayala Avenue and Paseo de Roxas Street in Makati City.
According to petitioner Kilusang Mayo Uno, the police cited PP
1017 as the ground for the dispersal of their assemblies. During the
dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of
the Philippines and newspaper
_______________
11 Petition in G.R. No. 171396, p. 5.

12 Police action in various parts of Metro Manila and the reactions of the huge
crowds being dispersed were broadcast as “breaking news” by the major television
stations of this country.
207
VOL. 489, MAY 3, 2006 207

columnist. Also arrested was his companion, Ronald Llamas,

president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided
the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the
Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper;
while policemen from the 13
Manila Police District were stationed outside the building. A
few minutes after the search and seizure at the Daily Tribune offices,
the police surrounded the premises of another pro-opposition paper,
Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael
Defensor, is “meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government.” The PNP warned that it would take
over any media organization that would not follow “standards set by
the government during the state of national emergency.” Director
General Lomibao stated that “if they do not follow the standards—
and the standards are—if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017—we will recommend a ‘takeover.’”
National Telecommunications’ Commissioner Ronald Solis urged
television and radio networks to “cooperate” with the government
for the duration of the state of national emergency. He asked for
“balanced reporting” from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules
_______________
208

14
set out for media coverage when the national security is threatened.
Also, on February 25, 2006, the police arrested Congressman
Crispin Beltran, representing the Anakpawis Party and Chairman of
Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985.
Beltran’s lawyer explained that the warrant, which stemmed from a
case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to visit
Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when
the police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montaño, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna
Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the
PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the “Batasan 5”
decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the
rights of Representatives Beltran, Satur Ocampo, et al., are not being
raised in these petitions.
_______________
14 Ibid.
209
VOL. 489, MAY 3, 2006 209

On March 3, 2006, President Arroyo issued PP 1021 declaring that

the state of national emergency has ceased to exist. In the interim,
these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President
Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed
PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) it is a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of
assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and
Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of “censorship” or “prior
restraint.” They also claimed that the term “emergency” refers only
to tsunami, typhoon, hurricane and similar occurrences, hence, there
is “absolutely no emergency” that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative
Francis Joseph G. Escudero, and twenty one (21) other members of
the House of Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute
“usurpation of legislative powers”; “violation of freedom of
expression” and “a declaration of martial law.” They alleged that
President Arroyo “gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the
possibility of lawless violence and a showing that there is necessity
to do so.”
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and
(3) they violate freedom of
210

expression and the right of the people to peaceably assemble to

redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc.
(ALGI) alleged that PP 1017 and15 G.O. No. 5 are unconstitutional 16 17
because18
they violate (a) Section 4 of
19
Article II, (b) Sections 1, 2,
and20 4 of Article III, (c) Section 23 of Article VI, and (d) Section
17 of Article XII of the Constitution.
_______________
15 The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.
16 No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
17 The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
18 No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the Government
for redress of grievances.
19 (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a
state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
20 In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation
211
VOL. 489, MAY 3, 2006 211

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz, et al.,

alleged that PP 1017 is an “arbitrary and unlawful exercise by the
President of her Martial Law powers.” And assuming that PP 1017
is not really a declaration of Martial Law, petitioners argued that “it
amounts to an exercise by the President of emergency powers
without congressional approval.” In addition, petitioners asserted
that PP 1017 “goes beyond the nature and function of a
proclamation as defined under the Revised Administrative Code.”
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda
maintained that PP 1017 and G.O. No. 5 are “unconstitutional for
being violative of the freedom of expression, including its cognate
rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under
Article III, Section 4 of the 1987 Constitution.” In this regard, she
stated that these issuances prevented her from fully prosecuting her
election protest pending before the Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General

countered that: first, the petitions should be dismissed for being
moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU, et al.), 171485 (Escudero, et al.) and
171489 (Cadiz, et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent;
fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017
does not violate the people’s right to free expression and redress of
grievances. On March 7, 2006, the Court conducted oral arguments
and heard the parties on the above interlocking issues which may be
summarized as follows:
_______________
of any privately owned public utility or business affected with public interest.
212

A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot

and academic.
2) Whether petitioners in 171485 (Escudero, et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU, et al.), 171489 (Cadiz, et
al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of

PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I Moot and Academic Principle

One of the greatest contributions of the American system to this
country is21 the concept of judicial review enunciated in Marbury v.
21
Madison. This concept rests on the extraordinary simple foundation
—
“The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt,
and thus to vindicate and preserve inviolate the will of the people as
expressed in
_______________
211 Cranch 137 [1803].
213
VOL. 489, MAY 3, 2006 213

the Constitution. This power the courts exercise.

22
This is the beginning
and the end of the theory of judicial review.”
But the power of judicial 23

review does not repose upon the courts a
“self-starting capacity.” Courts may exercise such power only when
the following requisites are present: first, there must be an actual
case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional
24
question must be necessary to the determination of the case itself.
Respondents maintain that the first and second requisites are
absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right,
an opposite legal claims susceptible of judicial resolution. It is
“definite and concrete, touching the legal relations of parties having
adverse legal interest;”
25
a real and substantial controversy admitting
of specific relief. The Solicitor General refutes the existence of
such actual case or controversy, contending that the present petitions
were rendered “moot and academic” by President Arroyo’s issuance
of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases 26to present a
justiciable controversy by virtue of supervening events, so
_______________
22 Howard L. MacBain, “Some Aspects of Judicial Review,” Bacon Lectures on the

Constitution of the United States (Boston: Boston University Heffernan Press, 1939),
pp. 376-77.
23 The Court has no self-starting capacity and must await the action of some
litigant so aggrieved as to have a justiciable case. (Shapiro and Tresolini, American
Constitutional Law, Sixth Edition, 1983, p. 79).
24 Cruz, Philippine Political Law, 2002 Ed., p. 259.
25 Ibid.
26 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA
736.
214

27
that a declaration thereon would be of no practical 28use or value.
Generally, courts decline29
jurisdiction over such case or dismiss it
on ground of mootness.
The Court holds that President Arroyo’s issuance of PP 1021 did
not render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017
and G.O. No. 5 constitutional or valid? Do they justify these
alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that “an
unconstitutional act is not a law, it confers no rights, it imposes
no duties, it 30affords no protection; it is in legal contemplation,
inoperative.”
The “moot and academic” principle is not a magical formula that
can automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot 31and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character 32
of
the situation and the paramount public interest is involved; third,
when constitutional issue raised requires formulation of controlling
principles to guide
_______________
27 Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795,
March 10, 2004, 425 SCRA 129; Vda. de Dabao v. Court of Appeals, G.R. No. 1165,
March 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431,
November 11, 2003, 415 SCRA 590.
28 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56,
January 26, 2004, 421 SCRA 21; Vda. de Dabao v. Court of Appeals, supra.
29 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
30 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S.
425.
31 Province of Batangas v. Romulo, supra.
32 Lacson v. Perez, supra.
215
VOL. 489, MAY 3, 2006 215

33
the bench, the bar, and the public;
34
and fourth, the case is capable of
repetition yet evading review.
All the foregoing exceptions are present here and justify this
Court’s assumption of jurisdiction over the instant petitions.
Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being
raised affect the public’s interest, involving as they do the people’s
basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the 35
extent of the
protection given by constitutional guarantees. And lastly,
respondents’ contested actions are capable of repetition. Certainly,
the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. 36
Panganiban’s Separate
Opinion in Sanlakas v. Executive Secretary. However, they failed to
take into account the Chief Justice’s very statement that an otherwise
“moot” case may still be decided “provided the party raising it in a
proper case has been and/or continues to be prejudiced or damaged
as a direct result of its issuance.” The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.
_______________
33 Province of Batangas v. Romulo, supra.

34 Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435
SCRA 98; Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577;
Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
35 Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
36 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
216

II Legal Standing
In view of the number of petitioners suing in various personalities,
the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.

Locus standi is defined as 37
“a right of appearance in a court of
justice on a given question.” In private suits, standing is governed
by the “real-parties-in interest” rule as contained in Section 2, Rule 3
of the 1997 Rules of Civil Procedure, as amended. It provides that
“every action must be prosecuted or defended in the name of the
real party in interest.” Accordingly, the “real-party-in-interest” is
“the party who stands to be benefited or injured by the
judgment
38
in the suit or the party entitled to the avails of the
suit.” Succinctly put, the plaintiff’s standing is based on his own
right to the relief sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a “public right” in assailing an
allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently
from any other person. He could be suing as a “stranger,” or in the
category of a “citizen,” or ‘taxpayer.” In either case, he has to
adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
“citizen” or “taxpayer.
Case law in most jurisdictions now allows both “citizen” and
“taxpayer” standing in public 39
actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in
_______________
37 Black’s Law Dictionary, 6th Ed. 1991, p. 941.

38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
39 275 Ky 91, 120 SW2d 765 (1938).
217
VOL. 489, MAY 3, 2006 217

the latter, he is but the mere instrument of the public concern.

As held40by the New York Supreme Court in People ex rel Case v.
Collins: “In matter of mere public right, however . . . the people
are the real parties . . . It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance 41
be
remedied.” With respect to taxpayer’s suits, Terr v. Jordan held
that “the right of a citizen and a taxpayer to maintain an action
in courts to restrain the unlawful use of public funds to his

injury cannot be denied.”
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United States Supreme Court laid42
down the more stringent “direct injury” 43
test in Ex Parte Levitt,
later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all
members of the public.
This Court adopted
44
the “direct injury” test in our jurisdiction. In
People v. Vera, it held that the person who impugns the validity of a
statute must have “a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a
result.” The Vera doctrine was upheld in a litany of cases, such as,
Custodio v.
_______________
40 19 Wend. 56 (1837).
41 232 NC 48, 59 SE2d 359 (1950).
42 302 U.S. 633.
43 318 U.S. 446.
44 65 Phil. 56 (1937).
218

45
President of the 46Senate, Manila Race Horse Trainers’ 47Association
v. De la Fuente, Pascual v. Secretary of48Public Works and Anti-
Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its
discretion. This was done
49
in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the “transcendental importance” of
the cases prompted the Court to act liberally. Such liberality
50
was
neither a rarity nor accidental. In Aquino v. Comelec, this Court
resolved to pass upon the issues raised due to the “far-reaching
implications” of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving 51

the
constitutionality or validity of laws, regulations and rulings.
_______________
45 G.R. No. 117, November 7, 1945 (Unreported).

46 G.R. No. 2947, January 11, 1959 (Unreported).
47 110 Phil. 331 (1960).
48 77 Phil. 1012 (1947).
49 84 Phil. 368 (1949) The Court held: “Above all, the transcendental importance
to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure.”
50 L-No. 40004, January 31, 1975, 62 SCRA 275.
51 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the
Court held that where the question is one of public duty and the enforcement of a
public right, the people are the real party in interest, and it is sufficient that the
petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA
530, where the Court held that in cases involving an assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen and part of the general public which possesses the right.
219
VOL. 489, MAY 3, 2006 219

Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been
_______________
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No.

81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to
taxpayers’ lack of personality to sue may be disregarded in determining the validity of
the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court
held that while no expenditure of public funds was involved under the questioned
contract, nonetheless considering its important role in the economic development of
the country and the magnitude of the financial consideration involved, public interest
was definitely involved and this clothed petitioner with the legal personality under the
disclosure provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that
while petitioners are strictly speaking, not covered by the definition of a “proper
party,” nonetheless, it has the discretion to waive the requirement, in determining the
validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452,
where the Court held that it enjoys the open discretion to entertain taxpayer’s suit or
not and that a member of the Senate has the requisite personality to bring a suit where
a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where
the Court held that petitioner as a taxpayer, has the personality to file the instant
petition, as the issues involved, pertains to illegal expenditure of public money;
Osmeña v. Comelec, G.R. No. 100318, 100308, 100417, 100420, July 30, 1991,
199 SCRA 750, where the Court held that where serious constitutional questions are
involved, the “transcendental importance” to the public of the cases involved
demands that they be settled promptly and definitely, brushing aside technicalities of
procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the
Court held that the importance of the issues involved concerning as it does the
political exercise of qualified voters affected
220

allowed to sue under the principle of “transcendental importance.”

Pertinent are the following cases:
52
(1) Chavez v. Public Estates Authority, where the Court ruled
that the enforcement of the constitutional right to
information and the equitable diffusion of natural
resources are matters of transcendental importance
which clothe the petitioner with locus standi;
53
(2) Bagong Alyansang Makabayan v. Zamora, wherein the
Court held that “given the transcendental importance of
the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the
lack of direct injury to the parties seeking judicial
review” of the Visiting Forces Agreement;
54
(3) Lim v. Executive Secretary, while the Court noted that the
petitioners may not file suit in their capacity as taxpayers
absent a showing that “Balikatan 02-01” involves the
exercise of Congress’ taxing or spending powers, it
reiterated55 its ruling in Bagong Alyansang Makabayan v.
Zamora, that in cases of transcendental importance, the
cases must be settled promptly and definitely and
standing requirements may be relaxed.
By way of summary, the following rules may be culled from the

cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the
following requirements are met:
(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
_______________
by the apportionment, necessitates the brushing aside of the procedural

requirement of locus standi.
52 G.R. No. 133250, July 9, 2002, 384 SCRA 152.
53 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342
SCRA 449.
54 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
55 Supra.
221
VOL. 489, MAY 3, 2006 221

(3) for voters, there must be a showing of obvious interest in

the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as
legislators.
Significantly, recent decisions show a certain toughening in the

Court’s attitude toward legal standing.
56
In Kilosbayan, Inc. v. Morato, the Court ruled that the status of
Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract,
more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.
In Telecommunications 57 and Broadcast Attorneys of the
Philippines, Inc. v. Comelec, the Court reiterated the “direct injury”
test with respect to concerned citizens’ cases involving
constitutional issues. It held that “there must be a showing that the
citizen personally suffered some actual or threatened injury arising
from the alleged illegal58official act.”
In Lacson v. Perez, the Court ruled that one of the petitioners,
Laban ng Demokratikong Pilipino (LDP), is not a real party-in-
interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
_______________
56 G.R. No. 118910, November 16, 1995, 250 SCRA 130.

57 G.R. No. 132922, April 21, 1998, 289 SCRA 337.
58 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
222

59
In Sanlakas v. Executive Secretary, the Court ruled that only the
petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them
to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present
petitions.
The locus standi of petitioners in G.R. No. 171396, particularly
David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged “direct injury” resulting from
“illegal arrest” and “unlawful search” committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there
was usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever
the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), 60
this Court applied the liberality
rule in Philconsa v. Enriquez, Kapatiran 61Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, Association of Small
Landowners
62
in the Philippines, Inc. v. Secretary of Agrarian
Reform, Basco v. Philippine Amusement and Gam-
_______________
59 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

60 235 SCRA 506 (1994).
61 Supra.
62 Supra.
223
VOL. 489, MAY 3, 2006 223

63 64
ing Corporation, and Tañada v. Tuvera, that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O.
No. 5 violated its right to peaceful assembly may be deemed
sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial
notice of the announcement by the Office of the President banning
all rallies and canceling all permits for public assemblies following
the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz, et al., who are national
officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence
of the issuance of PP No. 1017
66
and G.O. No. 5. In Integrated Bar of
the Philippines v. Zamora, the Court held that the mere invocation
by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a
taxpayer to file the instant petition as there are no allegations of
illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator
on the allegation that her prerogatives as a lawmaker have been
impaired by PP 1017 and G.O. No. 5. Her
_______________
63 197 SCRA 52, 60 (1991).

64 Supra.
65 See NAACP v. Alabama, 357 U.S. 449 (1958).
66 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
224

claim that she is a media personality will not likewise aid her
because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the

Presidential Electoral Tribunal is likewise of no relevance. She has
not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi
is but corollary to the bigger question of proper exercise of judicial
power. This is the underlying legal tenet of the “liberality doctrine”
on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus call for
the application of the “transcendental importance” doctrine, a
relaxation of the standing requirements for the petitioners in the “PP
1017 cases.”
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that 67
the President, during his
tenure of office or actual incumbency, may not be sued in any civil
or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he
be freed from any form
_______________
67 From the deliberations of the Constitutional Commission, the intent of the

framers is clear that the immunity of the President from suit is concurrent only with
his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004
Ed., p. 302).
225
VOL. 489, MAY 3, 2006 225

of harassment, hindrance or distraction to enable him to fully attend

to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of
the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the
68
68
people but he may be removed from office 69
only in the mode
provided by law and that is by impeachment.
B. SUBSTANTIVE
I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not “necessary” for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of
the President’s exercise of his Commander-in-Chief power has
reached70
its distilled point—from the 71indulgent days of Barcelon v.
Baker and 72
Montenegro v. Castañeda
73
to the volatile era of Lansang
74
v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla v. Enrile. The
tug-of-war always cuts across the line defining “political questions,”
particularly
_______________
68 Section 1, Article XI of the Constitution provides: Public Office is a public trust.

Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism
and justice, and lead modest lives.
69 Ibid., Sec. 2.
70 No. 2908, 5 SCRA 87.
71 91 Phil. 882 (1952).
72 No. L-33964, December 11, 1971, 42 SCRA 448.
73 No. L-35546, September 17, 1974, 59 SCRA 183.
74 No. L-61388, April 20, 1983, 121 SCRA 472.
226

those questions “in regard to which full discretionary authority has

been delegated
75
to the legislative or executive branch of the
government.” Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and
conclusive on the courts.Lansang took the opposite view. There,
the members of the Court were unanimous in the conviction that the
Court has the authority to inquire into the existence of factual bases
in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the
system of checks and balances, “under which the President is
supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to determine

whether or not he has so acted is vested in the Judicial
Department, 76
which in this respect, is, in turn, constitutionally
supreme.” In 1973, 77
the unanimous Court of Lansang was divided
in Aquino v. Enrile. There, the Court was almost evenly divided on
the issue of whether the validity 78of the imposition of Martial Law is
a political or justiciable question. Then came Garcia-
_______________
75 Tañada v. Cuenco, 103 Phil. 1051 (1957).

76 Lansang v. Garcia, supra, pp. 473 and 481.
77 Supra.
78 “Five Justices—Antonio, Makasiar, Esguerra, Fernandez, and Aquino—took the
position that the proclamation of martial law and the arrest and detention orders
accompanying the proclamation posed a “political question” beyond the jurisdiction
of the Court. Justice Antonio, in a separate opinion concurred in by Makasiar,
Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong
presidency and had concentrated powers in times of emergency in the hands of the
President and had given him broad authority and discretion which the Court was
bound to respect. He made reference to the decision in Lansang v. Garcia but read it
as in effect upholding the “political question” position. Fernandez, in a separate
opinion, also argued Lansang, even understood as giving a narrow scope of review
authority to the Court, affirmed
227
VOL. 489, MAY 3, 2006 227

Padilla v. Enrile which greatly diluted Lansang. It declared that

there is a need to re-examine the latter case, ratiocinating that “in
times of war or national emergency, the President must be given
absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, 79
is
answerable only to his conscience, the People, and80God.”
The Integrated Bar of the Philippines v. Zamora —a recent case
most pertinent to these cases at bar—echoed a principle similar to
Lansang. While the Court considered the President’s “calling-out”
power as a discretionary power solely vested in his wisdom, it
stressed that “this does not prevent an examination of whether
such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave
abuse of discretion.” This ruling is mainly a result of the Court’s
reliance on Section 1, Article VIII of 1987 Constitution which
fortifies the authority of the courts to determine in an appropriate
action the validity of the acts of the political departments. Under the
new definition of judicial power, the courts are authorized not only
“to settle actual controversies involving rights which are legally

demandable and enforce-
_______________
the impossible task of ‘checking’ the action taken by the President. Hence, he
advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the
abandonment of Lansang and a return to Barcelon. And, although Justices Castro,
Fernando, Muñoz-Palma, and, implicitly, Teehankee, lined up on the side of
justiciability as enunciated in Lansang, x x x Barredo, however, wanted to have the
best of both worlds and opted for the view that “political questions are not per se
beyond the Court’s jurisdiction . . . but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with the Executive’s
Proclamation.” (Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, 1996 Edition, p. 794.)
79 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora,
supra.
80 Supra.
228

able,” but also “to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.” The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before a forbidden territory, to wit,
81
the discretion of the
political departments of the government. It speaks82 of judicial
prerogative not only in terms of power but also of duty.
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that “judicial inquiry can go no
further than to satisfy the Court not that the President’s decision is
correct,” but that “the President did not act arbitrarily.” Thus,83 the
standard laid down is not correctness, but arbitrariness. In
Integrated Bar of the Philippines, this Court further ruled that “it is
incumbent upon the petitioner to show that the President’s
decision is totally bereft of factual basis” and that if he fails, by
way of proof, to support his assertion, then “this Court cannot
undertake an independent investigation beyond the pleadings.”
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of
the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the

military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes
of
_______________
81 Cruz, Philippine Political Law, 2002 Ed., p. 247.

82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA
756.
83 Supra, pp. 481-482.
229
VOL. 489, MAY 3, 2006 229

the Intelligence Report and Security Group of the Philippine Army

showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President
Arroyo was not expected to simply fold her arms and do nothing to
prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject—the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for
our ensuing discussion. John Locke, describing the architecture of
civil government, called upon the English doctrine of prerogative to
cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a
prerogative “power to act according to discretion for the public
good, without the proscription of the law and sometimes even
against it.”84 But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge
the need for resorting to the prerogative and how may its abuse
be avoided? Here, Locke readily admitted defeat, suggesting
_______________
84 Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
230

that “the people have no other remedy in this, as in all other

cases where
85
they have no judge on earth, but to appeal to
Heaven.”
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves
to circumstances, may, in certain cases, render them disastrous and make
them bring about, at a time of crisis, the ruin of the State . . .
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its law
to lapse . . .
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer,
who shall silence all the laws and suspend for a moment the sovereign
authority. In such a case, there is no doubt about the general will,86 and it
clear that the people’s first intention is that the State shall not perish.
Rosseau did not fear the abuse of the emergency dictatorship or

“supreme magistracy” as he termed it. For him, it would more
likely be cheapened by “indiscreet use.” He was unwilling to rely
upon an “appeal to heaven.” Instead, he relied upon a tenure of
office of prescribed
87
duration to avoid perpetuation of the
dictatorship.
John Stuart Mill concluded his ardent defense of representative
government: “I am far from condemning, in cases of extreme
necessity, the assumption88 of absolute power in the form of a
temporary dictatorship.”
_______________
85 Ibid.
86 The Social Contract (New York: Dutton, 1950), pp. 123-124.
87 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
88 Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
231
VOL. 489, MAY 3, 2006 231

Nicollo Machiavelli’s view of emergency powers, as one element in

the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
“Now, in a well-ordered society, it should never be necessary to resort to

extra-constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if
she has not by law provided for everything, 89
having a remedy for every
emergency and fixed rules for applying it.”
Machiavelli—in contrast to Locke, Rosseau and Mill—sought to

incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls
in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and
vigor in its application 90
in time of emergency, with effective
constitutional restraints.
Contemporary political theorists, addressing themselves to the
problem of response to emergency by constitutional democracies,91
have employed the doctrine of constitutional dictatorship.
Frederick M. Watkins saw “no reason why absolutism should not
be used as a means for the defense of liberal institutions,”
provided it “serves to protect established institutions from the
danger of permanent injury in a period of temporary emergency
and is followed 92
by a prompt return to the previous forms of
political life.” He recognized the two (2) key elements of the
_______________
89 The Discourses, Bk. 1, Ch. XXXIV.

90 Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
91 Ibid.
92 See The Problem of Constitutional Dictatorship, p. 328.
232

problem of emergency governance, as well as all constitutional

governance: increasing administrative powers of the executive,93
while at the same time “imposing limitation upon that power.”
Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a

dictatorship: “The period of dictatorship must be relatively short
. . . Dictatorship should always be strictly legitimate in character
. . . Final authority to determine the need for dictatorship 94
in any
given case must never rest with the dictator himself . . .” and the
objective of such an emergency dictatorship should be “strict
political conservatism.”
Carl J. 95
Friedrich cast his analysis in terms similar to those of
Watkins. “It is a problem of concentrating power—in a government
where power has consciously been divided—to cope with . . .
situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to
who shall
96
exercise such powers, when, for how long, and to what
end.” Friedrich, too, offered criteria for judging the adequacy of
any of scheme of emergency powers, to wit: “The emergency
executive must be appointed by constitutional means—i.e., he
must be legitimate; he should not enjoy power to determine the
existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency 97
action must be the defense of the constitutional
order.”
Clinton L. Rossiter, after surveying the history of the
employment of emergency powers in Great Britain, France,
_______________
93 Ibid., p. 353.
94 Ibid., pp. 338-341.
95 Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
96 Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn
& Co., 1949, p. 580.
97 Ibid., pp. 574-584.
233
VOL. 489, MAY 3, 2006 233

Weimar, Germany and the United States, reverted to a description of

a scheme of “constitutional dictatorship”
98
as solution to the vexing
problems presented by emergency. Like Watkins and Friedrich, he
stated a priori the conditions of success of the “constitutional
dictatorship,” thus:
1) No general regime or particular institution of constitutional

dictatorship should be initiated unless it is necessary or
even indispensable to the preservation of the State and its
constitutional order . . .
2) . . . the decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will
constitute the dictator . . .
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination . . .
4) . . . all uses of emergency powers and all readjustments in
the organization of the government should be effected in
pursuit of constitutional or legal requirements . . .
5) . . . no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis
...
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect . . .
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every
action taken under a constitutional dictatorship . . .
9) The decision to terminate a constitutional dictatorship, like
the decision to institute one should never be in the hands of
the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted . . .
_______________
234

11) . . . the termination of the crisis must be followed by a

complete return as possible to the political and
governmental conditions existing99 prior to the initiation of
the constitutional dictatorship . . .
Rossiter accorded to legislature a far greater role in the oversight

exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or
termination of an emergency, and he places great 100 faith in the
effectiveness of congressional investigating committees.
Scott and Cotter, in analyzing the above contemporary theories in

light of recent experience, were one in saying that, “the suggestion
that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory.” To appraise emergency
power in terms of constitutional dictatorship serves merely to distort
the problem and hinder realistic analysis. It matters not whether the
term “dictator” is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, “constitutional
dictatorship” cannot be divorced from the implication of suspension
of the processes of constitutionalism. Thus, they favored instead the
“concept of constitutionalism” articulated by Charles H. McIlwain:
‘A concept of constitutionalism which is less misleading in the analysis of

problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by
any means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
limitations, and
_______________
99 Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press,

1948, pp. 298-306.
235
VOL. 489, MAY 3, 2006 235

political responsibility. McIlwain clearly recognized the need to repose

adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that
the really effective checks on despotism have consisted not in the
weakening of government but, but rather in the limiting of it; between
which there is a great and very significant difference. In associating
constitutionalism with “limited” as distinguished from “weak”
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete
101
political responsibility of government to the
governed.’
In the final analysis, the various approaches to emergency of the

above political theorists—from Lock’s “theory of prerogative,” to
Watkins’ doctrine of “constitutional dictatorship” and, eventually, to
McIlwain’s “principle of constitutionalism”—ultimately aim to
solve one real problem in emergency governance, i.e., that of
allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with
a sense of political responsibility and under effective limitations
and checks.
Our Constitution has fairly coped with this problem. Fresh from
the fetters of a repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution, endeavored to create
a government in the concept of Justice
_______________
236

102
Jackson’s “balanced power structure.” Executive, legislative, and
judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere.
But none has the monopoly of power in times of emergency.
Each branch is given a role to serve as limitation or check upon
the other. This system does not weaken the President, it just limits
his power, using the language of McIlwain. In other words, in times
of emergency, our Constitution reasonably demands that we repose a
certain amount of faith in the basic integrity and wisdom of the
Chief Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.
a. “Facial Challenge”
Petitioners contend that PP 1017 is void on its face because of its
“overbreadth.” They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a “chilling effect” to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing “on their faces” statutes in free speech cases,
103
also known under the American Law as First Amendment cases.
A plain reading of PP 1017 shows that it is not primarily directed

to speech or even speech-related conduct. It is actually a call upon
the AFP to prevent or suppress all forms of
_______________
102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96
L. Ed. 1153 (1952), See Concurring Opinion J. Jackson.
103 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan,
G.R. No. 148560, November 19, 2001, 369 SCRA 393.
237
VOL. 489, MAY 3, 2006 237

104
lawless violence. In United States v. Salerno, the US Su-preme
Court held that “we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First Amendment”
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that “reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct.” Undoubtedly, lawless violence, insurrection and rebellion
are considered “harmful” and 105“constitutionally unprotected
conduct.” In Broadrick v. Oklahoma, it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may

properly be held void on its face and when ‘such summary action’ is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules
of practice and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward conduct and that conduct—
even if expressive—falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving

statutes which, by their terms, seek to regulate only “spoken
words” and again, that “overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal 106
laws that are sought to be applied to protected conduct.” Here,
the incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct,
_______________
104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

105 Supra.
106 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan,
supra.
238

not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly
strong medicine,” to be used “sparingly
107
and only as a last resort,”
and is “generally disfavored”; The reason for this is obvious.
Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally
108
to others, i.e., in
other situations not before the Court. A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute “on its face,” not merely
“as applied for” so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the “chilling”; deterrent effect of the
overbroad statute on third parties not courageous enough to bring
suit. The Court assumes that an overbroad law’s “very existence
may cause others not before the court to refrain from constitutionally
protected speech or expression.” An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third parties.
_______________
107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).

108 Ibid.
239
VOL. 489, MAY 3, 2006 239

In other words, a facial challenge using the overbreadth doctrine will

require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on
the assumption or prediction that its very existence may cause
others not before the Court to refrain from constitutionally
109
protected speech or expression. In Younger v. Harris, it was held
that:
“[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes, . . .
ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.”
And third, a facial challenge on the ground of overbreadth is the

most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show
whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.
Related to the “overbreadth” doctrine is the “void for vagueness
doctrine” which holds that “a law is facially invalid if men of
common intelligence must necessarily
110
guess at its meaning and
differ as to its application.” It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool
for testing “on
_______________
109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362
U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S.
469, 106 L. Ed. 2d 388 (1989).
110 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-
24693, July 31, 1967, 20 SCRA 849 (1967).
240

their faces” statutes in free speech cases. And like overbreadth, it is

said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. Again, petitioners did not
even attempt to show that PP 1017 is vague in all its application.
They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision:
“by virtue of the power vested upon me by Section 18, Artilce VII . . . do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion”
Second provision:
“and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction”;
Third provision:
“as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency.”
The first provision pertains to the

111
President’s calling-out power. In
Sanlakas v. Executive Secretary, this Court,
_______________
111 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court
sustained President Arroyo’s declaration of a “state of rebellion” pursuant to her
calling-out power.
241
VOL. 489, MAY 3, 2006 241

through Mr. Justice Dante O. Tinga, held that Section 18, Article VII
of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress,

voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend
the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released.
242

grants the President, as Commander-in-Chief, a “sequence” of

graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of
habeas corpus, and the power to declare 112Martial Law. Citing
Integrated Bar of the Philippines v. Zamora, the Court ruled that
the only criterion for the exercise of the calling-out power is that
“whenever it becomes necessary,” the President may call the
armed forces “to prevent or suppress lawless violence, invasion or
rebellion.” Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to
determine the actual condition of the country.
Under the calling-out power, the President may summon the
armed forces to aid him in suppressing lawless violence, invasion
and rebellion. This involves ordinary police action. But every act
that goes beyond the President’s calling-out power is considered

illegal or ultra vires. For this reason, a President must be careful in
the exercise of his powers. He cannot invoke a greater power when
he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between
the President’s authority to declare a “state of rebellion” (in
Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a “state of
rebellion” emanates from her powers as Chief Executive, the
statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations.—Acts of the President fixing a date or declaring a

status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is
_______________
112 Supra.
243
VOL. 489, MAY 3, 2006 243

made to depend, shall be promulgated in proclamations which

shallhave the force of an executive order.
President Arroyo’s declaration of a “state of rebellion” was merely
an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration,
in the words of Sanlakas, is harmless, without legal significance,
and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion
or rebellion. She also relied on Section 17, Article XII, a provision
on the State’s extraordinary power to take over privatelyowned
public utility and business affected with public interest. Indeed, PP
1017 calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is
actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.
The declaration of Martial Law is a “warn[ing] to citizens that
the military power has been called upon by the executive to assist in
the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment, not commit any
acts which will in any way render113more difficult the restoration of
order and the enforcement of law.”
_______________
113 Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929,
quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].
244

In his “Statement before the Senate Committee on114 Justice” on March

13, 2006, Mr. Justice Vicente V. Mendoza, an authority in
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people from
harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend
the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of

Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be
used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its
nature and scope, and any act done contrary to its command is ultra
vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised
by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas
corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed
_______________
114 Retired Associate Justice of the Supreme Court.
245
VOL. 489, MAY 3, 2006 245

forces to assist her in preventing or suppressing lawless violence.

The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on Section
17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
115
As the Executive in whom the executive power is vested, the
primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or
affirmation to the effect that as President
116
of the Philippines, he will,
among others, “execute its laws.” In the exercise of such function,
the President, if needed, may employ the powers attached to his
office as117 the Commander-in-Chief of all the armed 118 forces of the
country, including the Philippine National119 Police under the
Department of Interior and Local Government.
Petitioners, especially Representatives Francis Joseph G.
Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza
Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution,
which vests the power to enact laws in Congress. They assail the
clause “to enforce obedience to all
_______________
115 Section 1, Article VII of the Constitution.

118 Section 6, Article XVI of the Constitution.
119 See Republic Act No. 6975.
246

the laws and to all decrees, orders and regulations promulgated

by me personally or upon my direction.”
Petitioners’ contention is understandable.
120
A reading of PP 1017
operative clause shows that it was lifted from Former President
Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire Philippines
as defined in Article 1, Section 1 of the Constitution under martial law and,
in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well
as any act of insurrection or rebellion and to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos

legislative power. Its enabling clause states: “to enforce obedience
to all the laws and decrees, orders and regulations promulgated
by me personally or upon my direction.” Upon the other hand, the
enabling clause of PP 1017 issued by President Arroyo is: to
enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction.”
Is it within the domain of President Arroyo to promulgate
“decrees”?
_______________
120 Ironically, even the 7th Whereas Clause of PP 1017 which states that “Article
2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government” replicates
more closely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of
the 1987 Constitution which provides that, “[t[he prime duty of the Government is to
serve and protect the people.”
247
VOL. 489, MAY 3, 2006 247

PP 1017 states in part: “to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my
direction.”
The President is granted an Ordinance Power under Chapter 2,

Book III of Executive Order No. 292 (Administrative Code of
1987). She may issue any of the following:
Sec. 2. Executive Orders.—Acts of the President providing for rules of a

general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders.—Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations.—Acts of the President fixing a date or declaring
a status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders.—Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied
in memorandum orders.
Sec. 6. Memorandum Circulars.—Acts of the President on matters
relating to internal administration, which the President desires to bring to
the attention of all or some of the departments, agencies, bureaus or offices
of the Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders.—Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing

issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees are
laws which are of the same category and binding force as statutes
because they were issued by the
248

President in the exercise of his legislative 121

power during the period of
Martial Law under the 1973 Constitution.
This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to
promulgate “decrees.” Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states
that “[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives.” To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo’s

exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to “laws,” she cannot call the
military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations
and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless
violence.
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
_______________
121 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v.

Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra.
Aquino v. Commission on Election, supra.
249
VOL. 489, MAY 3, 2006 249

The import of this provision is that President Arroyo, during the

state of national emergency under PP 1017, can call the military not
only to enforce obedience “to all the laws and to all decrees x x x”
but also to act pursuant to the provision of Section 17, Article XII
which reads:
Sec. 17. In times of national emergency, when the public interest so

requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above

provision when she issued PP 1017?
The answer is simple. During the existence of the state of
national emergency, PP 1017 purports to grant the President, without
any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a

product of the
122
“martial law” thinking of the 1971 Constitutional
Convention. In effect at the time of its approval was President
Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over “the
management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the
National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present
national emergency.”
_______________
122 Section 17, Article XIV of the 1973 Constitution reads: “In times of national
emergency when the public interest so requires, the State may temporarily take over
or direct the operation of any privately owned public utility or business affected with
public interest.”
250

Petitioners, particularly the members of the House of

Representatives, claim that President Arroyo’s inclusion of Section
17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to
declare “a state of national emergency” and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article
VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above

provision refers not only to war but also to “other national
emergency.” If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a “state of
national emergency” pursuant to Section 18, Article VII (calling-out
power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly,
they did not intend that Congress should first authorize the President
before he can declare a “state of national emergency.” The logical
conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a
Congressional enactment.
251
VOL. 489, MAY 3, 2006 251

But the exercise of emergency powers, such as the taking over of

privately owned public utility or business affected with public
interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a constitution which relate to the
same subject matter123will be construed together and considered in the
light of each other. Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation
of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers.
This is evident in the tenor of Section 23 (2), Article VI authorizing
it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing
that during grave emergencies, it may not be possible or practicable
for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised124
to carry out a
national policy declared by Congress.
Section 17, Article XII must be understood as an aspect of the

emergency powers clause. The taking over of private business
affected with public interest is just another facet of
_______________
123 Antieau, Constitutional Construction, 1982, p. 21.

124 Cruz, Philippine Political Law, 1998, p. 94.
252

the emergency powers generally reposed upon Congress. Thus,

when Section 17 states that the “the State may, during the
emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest,” it
refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the
reasonable
125
terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer, held:
It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate
of his powers under the Constitution. Particular reliance is placed on
provisions in Article II which say that “The executive Power shall be vested
in a President . . . . ”; that “he shall take Care that the Laws be faithfully
executed”; and that he “shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even though “theater of
war” be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed
Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production.
This is a job for the nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In
the framework of our Constitution, the
_______________
125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
253
VOL. 489, MAY 3, 2006 253

President’s power to see that the laws are faithfully executed refutes the
idea that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution is neither silent
nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that “All legislative
Powers126
herein granted shall be vested in a Congress of the United States
. . .”
Petitioner Cacho-Olivares, et al. contends that the term “emergency”

under Section 17, Article XII refers to “tsunami,” “typhoon,”
“hurricane”and“similar occurrences.” This is a limited view of
“emergency.”
Emergency, as a generic term, connotes the existence of
conditions suddenly intensifying the degree of existing danger to life
or well-being beyond that which is accepted as normal. Implicit in
this definitions
127
are the elements of intensity, variety, and
perception. Emergencies, as perceived by legislature or executive
in the United Sates since 1933, have been occasioned by a wide
range of situations,
128
classifiable under three (3) principal heads: a)
economic, b) natural disas-
_______________
126 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-
257.
128 The Federal Emergency Relief Act of 1933 opened with a declaration that the
economic depression created a serious emergency, due to wide-spread unemployment
and the inadequacy of State and local relief funds, . . . making it imperative that the
Federal Government cooperate more effectively with the several States and Territories
and the District of Columbia in furnishing relief to their needy and distressed people.
President Roosevelt in declaring a bank holiday a few days after taking office in 1933
proclaimed that “heavy and unwarranted withdrawals of gold and currency from . . .
banking institutions for the purpose of hoarding; . . . resulting in “sever drains on the
Nation’s stocks of gold . . . have created a national
254

129 130
ter, and c) national security.
“Emergency,” as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pesti-
_______________
emergency,” requiring his action. Enacted within months after Japan’s attack on
Pearl Harbor, the Emergency Price Control Act of 1942 was designed to prevent
economic dislocations from endangering the national defense and security and the
effective prosecution of the war. (Smith and Cotter, Powers of the President During
Crises, 1972, p. 18)
129 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet
the emergency and necessity for relief in stricken agricultural areas and in another
section referred to “the present drought emergency.” The India Emergency Food Aid
Act of 1951 provided for emergency shipments of food to India to meet famine
conditions then ravaging the great Asian sub-continent. The Communication Act of
1934 and its 1951 amendment grant the President certain powers in time of “public
peril or disaster.” The other statutes provide for existing or anticipated emergencies
attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an
landslides. There is also a Joint Resolution of April 1937. It made “funds available for
the control of incipient or emergency outbreaks of insect pests or plant diseases,
including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1,
1952, Sec. 2 [a]) Supra.
130 National Security may be cataloged under the heads of (1) Neutrality, (2)
Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil
Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the
United States which conceivably would cause substantial damage or injury to civilian
property or persons in the United States by any one of several means; sabotage, the
use of bombs, shellfire, or atomic, radiological, chemical, bacteriological means or
other weapons or processes. Such an occurrence would cause a “National Emergency
for Civil Defense Purposes,” or “a state of civil defense emergency,” during the term
which the Civil Defense Administrator would have recourse to extraordinary powers
outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an
illustration in this context for emergency cooperation. “Emergency” as used in this
compact shall mean and include invasion, or other hostile action, disaster,
insurrection or imminent danger thereof. ( Id., p. 15-16).
255
VOL. 489, MAY 3, 2006 255

lence or epidemic, typhoon, flood,

131
or other similar catastrophe of
nationwide proportions or effect. This is evident in the Records of
the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of “national

emergency” which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over
or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes.
What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
“national emergency.”
MR. BENGZON. Unless they are 132
of such proportions such that they
would paralyze government service. x x x x x x
MR. TINGSON. May I ask the committee if “national emergency” refers
to military national emergency or could this be economic emergency?”
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations. 133
MR. TINGSON. Thank you very much.
It may be argued that when there is national emergency, Congress

may not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or
business affected with public interest.
_______________
131 Cruz, Philippine Political Law, 1998, p. 95.

132 Record of the Constitutional Commission, Vol. III, pp. 266-267.
133 Record of the Constitutional Convention, pp. 648-649.
256

134
In Araneta v. Dinglasan, this Court emphasized that legislative
power, through which extraordinary measures are exercised, remains
in Congress even in times of crisis.
“x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution
has set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this system,
with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting laws been
surrendered to another department—unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils
more than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to perform
the duties and discharge the responsibilities committed to them
respectively.”
Following our interpretation of Section 17, Article XII, invoked by

President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without
authority from Congress.
Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no
power to take over privately-owned public
_______________
134 84 Phil. 368 (1949).
257
VOL. 489, MAY 3, 2006 257

utility or business affected with public interest. The President cannot

decide whether exceptional circumstances exist warranting the take
over of privately-owned public utility or business affected with
public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President
has no absolute authority to exercise all the powers of the State
under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. “AS APPLIED CHALLENGE”

One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and

trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill
of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate “direct injury.”
In G.R. No. 171396, petitioners David and Llamas alleged that,
on February 24, 2006, they were arrested without warrants on their
way to EDSA to celebrate the 20th Anniversary of People Power I.
The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune
Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives “raided and ransacked without warrant” their office.
Three policemen were assigned to guard their office as a possible
“source of destabilization.” Again, the basis was PP 1017.
258

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU, et

al. alleged that their members were “turned away and dispersed”
when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the “direct injuries” allegedly suffered by the said
petitioners shows that they resulted from the implementation,
pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O.
No 5 on the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare
135
statutes
invalid although they may be abused and misabused and may 136
afford an opportunity for abuse in the manner of application.
The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish
137
the end desired, not
from its effects in a particular case. PP 1017 is merely an
invocation of the President’s calling-out power. Its general purpose
is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional
on the ground that its implementor committed illegal acts? The
answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of
power, and not a mere incidental
_______________
135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.

136 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70
ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S. Ct. 158.
137 Sanitation Dist. v. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211
NY 309, 105 NE 548.
259
VOL. 489, MAY 3, 2006 259

138
result arising from its exertion. This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional
just because the officers implementing them have acted arbitrarily. If
this were so, judging from the blunders committed by policemen in
the cases passed upon by the Court, majority of the provisions of the
Revised Penal Code would have been declared unconstitutional a
long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the
provisions of PP 1017. General orders are “acts and commands of
the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines.” They are internal rules issued by the
executive officer to his subordinates precisely for the proper and
efficient administration of law. Such rules and regulations create
no relation except between139 the official who issues them and the
official who receives them. They are based on and are the product
of, a relationship
140
in which power is their source, and obedience,
their object. For these reasons, one requirement for these rules to
be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry
out the “necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.”
Unlike the term “lawless violence” which is unarguably extant in
our statutes and the Constitution, and which is invariably associated
with “invasion, insurrection or rebellion,” the phrase “acts of
terrorism” is still an amorphous and vague
_______________
138 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L. ed. 530, 29 S. Ct. 370.
139 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p.
115.
140 Ibid.
260

concept. Congress has yet to enact a law defining and punishing acts
of terrorism.
In fact, this “definitional predicament” or the “absence of an
agreed definition of terrorism” confronts not only our country, but
the international community as well. The following observations are
quite apropos:
In the actual unipolar context of international relations, the “fight against

terrorism” has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states “sponsoring terrorism” and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
The basic problem underlying all these military actions—or threats of the
use of force as the most recent by the United States against Iraq—consists in
the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of
acts of violence either by states, by armed groups such as liberation
movements, or by individuals.
The dilemma can by summarized in the saying “One country’s terrorist is
another country’s freedom fighter.” The apparent contradiction or lack of
consistency in the use of the term “terrorism” may further be demonstrated
by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a few, were originally labeled as
terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts—the dif-ferentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to
bridge the gap between those who associate “terrorism” with any violent act
by non-state groups against civil-
261
VOL. 489, MAY 3, 2006 261

ians, state functionaries or infrastructure or military installations, and those

who believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic and/or

religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated
by reference to the contradicting categorization of organizations and
movements such as Palestine Liberation Organization (PLO)—which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims
—the Kashmiri resistance groups—who are terrorists in the perception of
India, liberation fighters in that of Pakistan—the earlier Contras in
Nicaragua—freedom fighters for the United States, terrorists for the
Socialist camp—or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any way
—because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking inconsistencies
lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of terrorism will
“fluctuate” accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak
of a “liberation struggle,” not of “terrorism” when acts of violence by this
group are concerned, and vice versa.
The United Nations Organization has been unable to reach a decision on
the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e., a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A “policy of double standards” on this
vital issue of international affairs has been the unavoidable consequence.
This “definitional predicament” of an organization consisting of
sovereign states—and not of peoples, in spite of the emphasis in the
262

Preamble to the United Nations Charter!—has become even more serious in

the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute 141
since the terrorist attacks of 11
September 2001 in the United States.
The absence of a law defining “acts of terrorism” may result in

abuse and oppression on the part of the police or military. An
illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as
an act of terrorism and immediately arrest them pursuant to G.O.
No. 5. Obviously, this is abuse and oppression on their part. It must
be remembered that an act can only be considered a crime if there is
a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word “terrorism” appears only once in our criminal
laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by
President Marcos during the Martial Law regime. This decree is
entitled “Codifying The Various Laws on AntiSubversion and
Increasing The Penalties for Membership in Subversive
Organizations.” The word “terrorism” is mentioned in the following
provision: “That one who conspires with any other person for the
purpose of overthrowing the Government of the Philippines x x x by
force, violence, terrorism, x x x shall be punished by reclusion
temporal x x x.” P.D. No. 1835 was repealed by E.O. No. 167
(which outlaws the Communist Party of the Philippines) enacted by
President
_______________
141 In a Lecture delivered on March 12, 2002 as part of the Supreme Court
Centenary Lecture Series, Hans Koechler, Professor of Philosophy at the University
of Innsbruck (Austria) and President of the International Progress Organization,
speaking on “The United Nations, The International Rule of Law and Terrorism”
cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary,
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
263
VOL. 489, MAY 3, 2006 263

Corazon Aquino on May 5, 1985. These two (2) laws, however, do

not define “acts of terrorism.” Since there is no law defining “acts of
terrorism,” it is President Arroyo alone, under G.O. No. 5, who has
the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected
in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause
of the Constitution. Thus, this Court declares that the “acts of

terrorism” portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the
military or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such
acts are considered illegal.
We first examine G.R. No. 171396 (David, et al.)
The Constitution provides that “the right of the people to be
secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing142the place to be searched and the persons or
things to be seized.” The plain import of the language of the
Constitution is that searches, seizures and arrests are normally
unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the
_______________
142 Section 2, Article III of the 1987 Constitution.
264

protective authority of a magistrate clothed with power143

to issue or
refuse to issue search warrants
144
or warrants of arrest.
In the Brief Account submitted by petitioner David, certain
facts are established: first, he was arrested without warrant; second,
the PNP operatives arrested him on the basis of PP 1017; third, he
was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect;
fourth, he was treated brusquely by policemen who “held his head
and tried to push him” inside an unmarked car; fifth, 145he was charged
with Violation of Batas Pambansa Bilang No. 880 and Inciting
to Sedition; sixth, he was detained for seven (7) hours; and seventh,
he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful.—A peace officer or a private

person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies

petitioner David’s warrantless arrest. During the inquest for
_______________
143 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-
Primer, p. 51.
144 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
145 An Act Ensuring the Free Exercise by the People of their Right Peaceably to
Assemble and Petition the Government for Other Purposes.
265
VOL. 489, MAY 3, 2006 265

the charges of inciting to sedition and violation of BP 880, all that

the arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective “Oust Gloria Now”
and their erroneous
146
assumption that petitioner David was the leader
of the rally. Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was 147not even
known whether petitioner David was the leader of the rally.
But what made it doubly worse for petitioners David, et al. is that
not only was their right against warrantless arrest violated, but also
their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
“Assembly” means a right on the part of the citizens to meet

peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil

that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not
subject to previous restraint or censorship. It may not be conditioned
upon the prior issuance of a permit or authorization from the
government au-
_______________
146 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
147 Ibid.
266

thorities except, of course, if the assembly is intended to be held in a

public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were
arrested while they were exercising their right to peaceful assembly.
They were not committing any crime, neither was there a showing of
a clear and present danger that warranted the limitation of that right.
As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed 148
to justify the
arresting officers’ conduct. In De Jonge v. Oregon, it was held that
peaceable assembly cannot be made a crime, thus:
“Peaceable assembly for lawful discussion cannot be made a crime. The

holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.”
On the basis of the above principles, the Court likewise considers

the dispersal and arrest of the members of KMU, et al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacañang’s directive canceling all permits

previously issued by local government
_______________
148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
267
VOL. 489, MAY 3, 2006 267

units. This is arbitrary. The wholesale cancellation of all permits to

rally is a blatant disregard of the principle that “freedom of
assembly is not to be limited, much less denied, except on a
showing of a clear and present danger 149
of a substantive evil that
the State has a right to prevent.” Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly
presents a clear and present danger that the State may deny the
citizens’ right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice
and hearing on the determination of the presence of clear and
present danger. Here, petitioners150were not even notified and heard on
the revocation of their permits. The first time they learned of it
was at the time of the dispersal. Such absence of notice is a fatal
defect. When a person’s right is restricted by government action, it
behooves a democratic government to see to it that the restriction is
fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet
of freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed
_______________
149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
150 Section 5. Application requirements.—All applications for a permit shall
comply with the following guidelines:
xxx xxx
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
268

to refute, established the following: first, the Daily Tribune’s offices

were searched without warrant; second, the police operatives seized
several materials for publication; third, the search was conducted at
about 1:00 o’ clock in the morning of February 25, 2006; fourth, the
search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth,
policemen stationed themselves at the vicinity of the Daily Tribune
offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was “meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the
rebels in bringing down this government.” Director General
Lomibao further stated that “if they do not follow the standards -
and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017—we will recommend a
‘takeover.’ ” National Telecommunications Commissioner Ronald
Solis urged television and radio networks to “cooperate” with the
government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
media coverage
151
during times when the national security is
threatened.
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and seizure.
Section 4 requires that a search warrant be issued upon probable
cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce. Section 8
mandates that the search of a house, room, or any other premise be
made in
_______________
269
VOL. 489, MAY 3, 2006 269

the presence of the lawful occupant thereof or any member of his

family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be
served in the daytime, unless the property is on the person or in the
place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. All these
rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the
press. The best gauge of a free and democratic society rests in the
degree
152
of freedom enjoyed by its media. In the Burgos v. Chief of
Staff this Court held that—
As heretofore stated, the premises searched were the business and printing
offices of the “Metropolitan Mail” and the “We Forum” newspapers. As a
consequence of the search and seizure, these premises were padlocked
and sealed, with the further result that the printing and publication of
said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners’
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed
like the “Metropolitan Mail” and “We Forum” newspapers in the
above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of
government officials to media,
_______________
152 No. L-64161, December 26, 1984, 133 SCRA 816.
270

are plain censorship. It is that officious functionary of the repressive

government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on 153
pain of punishment should he be so rash as to disobey.
Undoubtedly, the The Daily Tribune was subjected to these arbitrary
intrusions because of its anti-government sentiments. This Court

cannot tolerate the blatant disregard of a constitutional right even if
it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative
democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments
154
thereon. The motto should always be obsta
principiis.
Incidentally, during the oral arguments, the Solicitor General
admitted that the search of the Tribune’s offices and the seizure of its
materials for publication and other papers are illegal; and that the
same are inadmissible “for any purpose,” thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of
gathering evidence and you admitted that the policemen were
able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally
seized, I think and I know, Your
155
Honor, and these are
inadmissible for any purpose.
_______________
153 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections,

G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
154 Boyd v. United States, 116 U.S. 616 (1886).
155 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
271
VOL. 489, MAY 3, 2006 271

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So why
do you have to go there at 1 o’clock in the morning and without
any search warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
Are you saying that the act of the policeman is illegal, itis not
based on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because
there is nothing in 1017 which says that the police could go and
inspect and gather clippings from Daily Tribune or any other
newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t
know if it is premature to say this, we do not condone this. If
the people who have been injured by this would want 156
to sue
them, they can sue and there are remedies for this.
Likewise, the warrantless arrests and seizures executed by the police

were, according to the Solicitor General, illegal and cannot be
condoned, thus:
_______________
156 Ibid., pp. 432-433.
272

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed
illegal or unlawful acts committed on the occasion of 1017, as I
said, it cannot be condoned. You cannot blame the President
for, as you said, a misapplication of the law. These
157
are acts of
the police officers, that is their responsibility.
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and “should result in no constitutional
or statutory breaches if applied according to their letter.”
The Court has passed upon the constitutionality of these
issuances. Its ratiocination has been exhaustively presented. At this
point, suffice it to reiterate that PP 1017 is limited to the calling out
by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and
illegal. In this connection, Chief Justice Artemio V. Panganiban’s
concurring opinion, attached hereto, is considered an integral part of
this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021—a

supervening event—would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there
is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have
_______________
157 Ibid., pp. 507-508.
273
VOL. 489, MAY 3, 2006 273

been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed “if the May 1 rallies” become “unruly and violent.”
Consequently, the transcendental issues raised by the parties should
not be “evaded;” they must now be resolved to prevent future
constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional
insofar as it constitutes a call by the President for the AFP to prevent
or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017’s extraneous
provisions giving the President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees promulgated
by the President; and (3) to impose standards on media or any form
of prior restraint on the press, are ultra vires and unconstitutional.
The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot
take over privately-owned public utility and private business
affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President—acting as Commander-in-Chief—addressed
to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard—that the military and
the police should take only the “necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence.”
But the words “acts of terrorism” found in G.O. No. 5 have not
been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While “terrorism” has
been denounced generally in media, no law has been enacted to
guide the military, and eventually the courts, to determine the limits
of the AFP’s authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated
earlier, it is also pristine clear that (1) the warrantless arrest
274

of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal

of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune
offices and the whimsical seizures of some articles for publication
and other materials, are not authorized by the Constitution, the law
and jurisprudence. Not even by the valid provisions of PP 1017 and
G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose
any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified
and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented
before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or
administrative liabilities.
It is well to remember that military power is a means to an
end and substantive civil rights are ends in themselves. How to
give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the
eternal balancing tasks of a democratic state. During emergency,
governmental action may vary in breadth and intensity from normal
times, yet they should not be arbitrary as to unduly restrain our
people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists
who studied the various competing political philosophies is that, it is
possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism:
the maintenance of legal limits to arbitrary power,158
and political
responsibility of the government to the governed.
_______________
158 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.
275
VOL. 489, MAY 3, 2006 275

WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by
President Gloria Macapagal-Arroyo on the AFP to prevent or
suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP
1017 declaring national emergency under Section 17, Article VII of
the Constitution is CONSTITUTIONAL, but such declaration does
not authorize the President to take o ver privately-owned public
utility or business affected with public interest without prior
legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard
by which the AFP and the PNP should implement PP 1017, i.e.
whatever is “necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence.” Considering that
“acts of terrorism” have not yet been defined and made punishable
by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL. The warrantless arrest of Randolf S.
David and Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication
and other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and

Garcia, JJ., concur.
Panganiban (C.J.), Please see Concurring Opinion.
276

Puno, J., On Leave.

Ynares-Santiago, J., Pls. see Concurring Opinion.
Carpio, J., I also concur with Chief Justice’s Opinion.
Corona, J., I share the dissenting opinion of Mr. Justice
Tinga.
Carpio-Morales, J., The Concurring Opinion of the Chief
Justice merits also my concurrence.
Callejo, Sr., J., I also concur with the concurring opinion of
Chief Justice Artemio Panganiban.
Tinga, J., Please see dissenting opinion.
Velasco, Jr., J., I join the dissent of J. Tinga.
CONCURRING OPINION
PANGANIBAN, C.J.:
I was hoping until the last moment of our deliberations on these

consolidated cases that the Court would be unanimous in its
Decision. After all, during the last two weeks, it decided with one
voice two equally contentious and nationally 1
significant
controversies involving Executive Order2 No. 464 and the so-called
Calibrated Preemptive Response policy.
However, the distinguished Mr. Justice Dante O. Tinga’s
Dissenting Opinion has made that hope an impossibility. I now
write, not only to express my full concurrence in the thorough and
elegantly written ponencia of the esteemed Mme. Justice Angelina
Sandoval-Gutierrez, but more urgently to express a little comment
on Justice Tinga’s Dissenting Opinion (DO).
_______________
1 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA
1.
2 Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
277
VOL. 489, MAY 3, 2006 277

The Dissent dismisses all the Petitions, grants no reliefs to

petitioners, and finds nothing wrong with PP 1017. It labels the PP a
harmless pronouncement—“an utter superfluity”—and denounces
the ponencia as an “immodest show of brawn” that “has imprudently
placed the Court in the business of defanging paper tigers.”
Under this line of thinking, it would be perfectly legal for the
President to reissue PP 1017 under its present language and nuance.
I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017,
the police—“to some minds”—“may have flirted with power.” With
due respect, this is a masterful understatement. PP 1017 may be a
paper tiger, but—to borrow the colorful words of an erstwhile Asian
leader—it has nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer
limits of presidential prerogatives and the perseverance of this Court
in safeguarding the people’s constitutionally enshrined liberty. They
are playing with fire, and unless prudently restrained, they may one
day wittingly or unwittingly burn down the country. History will
never forget, much less forgive, this Court if it allows such
misadventure and refuses to strike down abuse at its inception.
Worse, our people will surely condemn the misuse of legal hocus
pocus to justify this trifling with constitutional sanctities.
And even for those who deeply care for the President, it is timely
and wise for this Court to set down the parameters of power and to
make known, politely but firmly, its dogged determination to
perform its constitutional duty at all times and against all odds.
Perhaps this country would never have had to experience the
wrenching pain of dictatorship; and a past President would not have
fallen into the precipice of authoritarianism, if the Supreme Court
then had the moral courage to remind him steadfastly of his
mortality and the inevitable historical damnation of despots and
tyrants. Let not this Court fall into that same rut.
278

CONCURRING OPINION
YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of men’s
minds.
—Harold J. Laski, Professor of Government and Member of the British

Labor Party, in his book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court
Justice Benjamin Cardozo once wrote, are preserved against the
assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments, the scorn1 and derision of those who
have no patience with general principles. In an open and democratic
society, freedom of thought and expression is the matrix,2 the
indispensable condition, of nearly every other form of freedom.
I share the view that Presidential Proclamation No. 1017 (PP
1017) under which President Gloria Macapagal-Arroyo declared a
state of national emergency, and General Order No. 5 (G.O. No. 5),
issued by the President pursuant to the same proclamation are both
partly unconstitutional.
I fully agree with the pronouncement that PP 1017 is no more
than the exercise by the President, as the Commander-in-Chief of all
armed forces of the Philippines, of her power to call out such armed
forces whenever it becomes necessary to prevent or suppress
lawless violence, invasion or rebellion. This is allowed under
Section 18, Article VII of the Constitution.
However, such “calling out” power does not authorize the
President to direct the armed forces or the police to enforce laws not
related to lawless violence, invasion or rebellion. The
_______________
1 Cardozo, B., Nature of Judicial Process, 1921.

2 Palko v. State of Connecticut, 302 U.S. 319 (1937).
279
VOL. 489, MAY 3, 2006 279

same does not allow the President to promulgate decrees with the
force and effect similar or equal to laws as this power is vested by
the Constitution with the legislature. Neither is it a license to
conduct searches and seizures or arrests without warrant except in
cases provided in the Rules of Court. It is not a sanction to impose
any form of prior restraint on the freedom of the press or expression
or to curtail the freedom to peaceably assemble or frustrate
fundamental constitutional rights. 3
In the case of Bayan v. Ermita this Court thru Justice Adolfo S.
Azcuna emphasized that the right to peaceably assemble and petition
for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm
of constitutional protection. These rights constitute the very basis of
a functional democratic polity, without which all the other rights

would be meaningless and unprotected.
On the other hand, the direct reference to Section 17, Article XII
of the Constitution as the constitutional basis for the declaration of a
state of national emergency is misplaced. This provision can be
found under the article on National Economy and Patrimony which
presupposes that “national emergency” is of an economic, and not
political, nature. Moreover, the said provision refers to the
temporary takeover by the State of any privately-owned public
utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the
public interest so requires and subject to “reasonable terms” which
the State may prescribe.
The use of the word “State” as well as the reference to
“reasonable terms” under Section 17, Article XII can only pertain to
Congress. In other words, the said provision is not self-executing as
to be validly invoked by the President without
_______________
3 G.R. Nos. 169838, 169848, 169881, April 25, 2006, 488 SCRA 226.
280

congressional authorization. The provision merely declares a state

economic policy during times of national emergency. As such, it
cannot be taken to mean as authorizing the President to exercise
“takeover” powers pursuant to a declaration of a state of national
emergency.
The President, with all the powers vested in her by Article VII,
cannot arrogate unto herself the power to take over or direct the
operation of any privately owned public utility or business affected
with public interest without Congressional authorization. To do so
would constitute an ultra vires act on the part of the Chief
Executive, whose powers are limited to the powers vested in her by
Article VII, and cannot extend to Article XII without the approval of
Congress.
Thus, the President’s authority to act in times of national
emergency is still subject to the limitations expressly prescribed by
Congress. This is a featured component of the doctrine of separation
of powers, specifically, the principle of checks and balances as
applicable to the political branches of government, the executive and
the legislature.
With regard to G.O. No. 5, I agree that it is unconstitutional
insofar as it mandates the armed forces and the national police “to
prevent and suppress acts of terrorism and lawless violence in the

country.” There is presently no law enacted by Congress that defines
terrorism, or classifies what acts are punishable as acts of terrorism.
The notion of terrorism, as well as acts constitutive thereof, is at best
fraught with ambiguity. It is therefore subject to different
interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of
what constitutes “terrorism” have led the law enforcement officers to
necessarily guess at its meaning and differ as to its application
giving rise to unrestrained violations of the fundamental guarantees
of freedom of peaceable assembly and freedom of the press.
281
VOL. 489, MAY 3, 2006 281

4
In Kolender v. Lawson, the United States Supreme Court nullified a
state statute requiring persons who loitered or wandered on streets to
provide “credible and reliable” identification and to account for their
presence when requested to do so by a police officer. Writing for the
majority, Justice Sandra Day O’Connor noted that the most
important aspect of vagueness doctrine was the imposition of
guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for
invocation of that doctrine was of special concern in this case
because of the potential for arbitrary suppression of the fundamental
liberties concerning freedom of speech and expression, as well as
restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of
national emergency as a statement of a factual5condition pursuant to
our ruling in Sanlakas v. Executive Secretary, I wish to emphasize
that the same does not grant her any additional powers.
Consequently, while PP 1017 is valid as a declaration of a factual
condition, the provisions which purport to vest in the President
additional powers not theretofore vested in her must be struck down.
The provision under G.O. No. 5 ordering the armed forces to carry
out measures to prevent or suppress “acts of terrorism” must be
declared unconstitutional as well.
Finally, it cannot be gainsaid that government action to stifle
constitutional liberties guaranteed under the Bill of Rights cannot be
preemptive in meeting any and all perceived or potential threats to
the life of the nation. Such threats must be actual, or at least gravely
imminent, to warrant government to take proper action. To allow
government to preempt the happening of any event would be akin to
“putting the cart before the horse,” in a manner of speaking. State
action is proper only if there is a clear and present danger of a sub-
_______________
4 461 U.S. 352 (1983).

5 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA
656.
282

stantive evil which the state has a right to prevent. We should bear in
mind that in a democracy, constitutional liberties must always be
accorded supreme importance in the conduct of daily life. At the
heart of these liberties lies freedom of speech and thought—not
merely in the propagation of ideas we love, but more importantly, in
the advocacy of ideas we may oftentimes loathe. As succinctly
articulated by Justice Louis D. Brandeis:
“Fear of serious injury cannot alone justify suppression of free speech and
assembly. x x x It is the function of speech to free men from the bondage of
irrational fears. To justify suppression of free speech there must be
reasonable ground to believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the evil to be prevented is a
serious one. x x x But even advocacy of violation, however reprehensible
morally, is not a justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a finding of clear and
present danger it must be shown either that immediate serious violence was
to be expected or was advocated, or that the past conduct
6
furnished reason
to believe that such advocacy was then contemplated.”
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the

petitions.
DISSENTING OPINION
TINGA, J.:
I regret to say that the majority, by its ruling today, has imprudently
placed the Court in the business of defanging paper tigers. The
immodest show of brawn unfortunately
_______________
6 Brandeis, J., joined by Holmes, J., concurring in Whitney v. California, 274 U.S.
357 (1927).
283
VOL. 489, MAY 3, 2006 283

comes at the expense of an exhibition by the Court of a fundamental

but sophisticated understanding of the extent and limits of executive
powers and prerogatives, as well as those assigned to the judicial
branch. I agree with the majority on some points, but I cannot join
the majority opinion, as it proceeds to rule on non-justiciable issues
based on fears that have not materialized, departing as they do from
the plain language of the challenged issuances to the extent of
second-guessing the Chief Executive. I respectfully dissent.
The key perspective from which I view these present petitions
1
is
my own ponencia in Sanlakas v. Executive Secretary, which
centered on Presidential Proclamation No. 427 (PP 427), declaring a
“state of rebellion” in 2003. The Court therein concluded that while
the declaration was constitutional, such declaration should be
regarded as both regarded as “an utter superfluity,” which “only
gives notice to the nation that such a state exists and that the armed
forces may be called to prevent or suppress it,” and “devoid of any
legal significance,” and “cannot diminish or violate constitutionally
protected rights.” I submit that the same conclusions should be
reached as to Proclamation No. 1017 (PP 1017). Following the
cardinal precept that the acts of the executive are presumed
constitutional is the equally important doctrine that to warrant
unconstitutionality, there must be a clear and unequivocal breach2
of
the Constitution, not a doubtful and argumentative implication. Also
well-settled as a rule of construction is that where thee are two
possible constructions of law or executive issuance one of which is
in harmony 3
with the Constitution, that construction should be
preferred. The
_______________
1 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.
2 R. Agpalo, Statutory Construction, 3rd ed. (1995), at p. 21.
3 “When a statute is reasonably susceptible of two constructions, one constitutional
and the other unconstitutional, that construction in favor of its constitutionality shall
be adopted and the construction that will render it invalid rejected.” See R. Agpalo,
Id.,
284

concerns raised by the majority relating to PP 1017 and General

Order Nos. 5 can be easily disquieted by applying this well-settled
principle.
I. PP 1017 Has No Legal Binding

Effect; Creates No Rights and
Obligations; and Cannot Be
Enforced or Invoked in a Court
Of Law
First, the fundamentals. The President is the Chief of 4State and
Foreign Relations, the chief of the Executive 5
Branch, and the
Commander-in-Chief of the Armed Forces. 6
The Constitution vests
on the President the executive power. The President derives these
constitutional mandates from direct election from the people. The
President stands as the most recognizable representative symbol of
government and of the Philippine state, to the extent that foreign
leaders who speak with the President do so with the understanding
that they are speaking to the Philippine state.
Yet no matter the powers and prestige of the presidency, there are
significant limitations to the office of the President. The President
does not have the power to make or legislate
_______________
at p. 266; citing Mutuc v. Commission on Elections, G.R. No. 32717, Nov. 26,
1970, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. No. 21064,
Feb. 18, 1970, 31 SCRA 413; American Bible Society v. City of Manila, 101 Phil. 386
(1957); Alba v. Evangelista, 100 Phil. 683 (1957); Maddumba v. Ozaeta, 82 Phil. 345
(1948); Benguet Exploration, Inc. v. Department of Agriculture and Natural
Resources, G.R. No. 29534, Feb. 28, 1977, 75 SCRA 285 (1977); De la Cruz v.
Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
4 See Constitution, Section 17, Article VII.
285
VOL. 489, MAY 3, 2006 285

7 8
laws, or disobey those laws passed by Congress. Neither does the
President have to power to create rights and obligations with binding
legal effect on the Filipino citizens, except in the context of entering
into contractual or treaty obligations by virtue of his/her position as
the head of State. The Constitution likewise imposes limitations on
certain powers of the President that are normally inherent in the
office. For example, even though the President is the administrative

head of9 the Executive Department and maintains executive control
thereof, the President is precluded from arbitrarily terminating the
vast majority of employees in the civil service 10whose right to
security of tenure is guaranteed by the Constitution.
11
The President has inherent powers, powers expressly vested by
the Constitution, and powers expressly conferred by statutes. The
power of the President to make proclamations, while confirmed by
statutory grant, is nonetheless rooted in an inherent power of the
presidency and not expressly subjected to constitutional limitations.
But proclamations, as they are, are a species of issuances of
extremely limited efficacy. As defined in the Administrative Code,
proclamations are merely “acts of the President fixing a date or
declaring a status or condition of public moment or interest upon the
existence of which12 the operation of a specific law or regulation is
made to depend.” A proclamation, on its own, cannot create or
suspend any constitutional or statutory rights or obligations. There
would be need of a complementing law or regu-
_______________
7 The plenary legislative power being vested in Congress. See Constitution,

Section 1, Article VI.
8 “[The President] shall ensure that the laws be faithfully executed.” See
Constitution, Section 17, Article VII.
9 Supra note 4.
10 “No officer or employee of the civil service shall be removed or suspended
except for cause provided by law.” See Constitution, Section 2(3), Article IX-B.
11 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA
760, 763.
12 See Administrative Code, Section 4, Chapter 2, Book III.
286

lation referred to in the proclamation should such act indeed put into
operation any law or regulation by fixing a date or declaring a status
or condition of a public moment or interest related to such law or
regulation. And should the proclamation allow the operationalization
of such law or regulation, all subsequent resultant acts cannot
exceed or supersede the law or regulation that was put into effect.
Under Section 18, Article VII of the Constitution, among the
constitutional powers of the President, as Commander-in-Chief, is to
“call out such armed forces
13
to prevent or suppress lawless violence,
invasion or rebellion.” The existence of invasion or rebellion could
allow the President to either suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under

martial law, but there is a fairly elaborate constitutional procedure to
be observed in such a case, including congressional affirmation or
revocation of such suspension or declaration, as well as the
availability of judicial review. However, the existence of lawless
violence, invasion or rebellion does not ipso facto cause the “calling
out” of the armed forces, the suspension of habeas corpus or the
declaration of martial law—it remains within the discretion of the
President to engage in any of these three acts should said conditions
arise.
Sanlakas involved PP 427, which declared the existence of a
“state of rebellion.” Such declaration could ostensibly predicate the
suspension of the privilege of the writ of habeas corpus or the
declaration of martial law, but the President did not do so. Instead,
PP 427, and the accompanying General Order No. 4, invoked the
“calling out” of the Armed Forces to prevent lawless violence,
invasion and rebellion. Appreciably, a state of lawless violence,
invasion or rebellion could be variable in scope, magnitude and
gravity; and Section 18, Article VII allows for the President to
respond with the appropriate measured and proportional response.
_______________
13 See Section 18, Article VII, Constitution.
287
VOL. 489, MAY 3, 2006 287

Indeed, the diminution of any constitutional rights through the

suspension of the privilege of the writ or the declaration of martial
law is deemed as “strong medicine” to be used sparingly and only as
a last resort, and for as long as only truly necessary. Thus, the mere
invocation of the “calling out” power stands as a balanced means of
enabling a heightened alertness in dealing with the armed threat, but
without having to suspend any constitutional or statutory rights or
cause the creation of any new obligations. For the utilization of the
“calling out” power alone cannot vest unto the President any new
constitutional or statutory powers, such as the enactment of new
laws. At most, it can only renew emphasis on the duty of the
President to execute already existing laws without extending a
corresponding mandate to proceed extra-constitutionally or extra-
legally. Indeed, the “calling out” power does not authorize the
President or the members of the Armed Forces to break the law.
These were the premises that ultimately informed the Court’s
decision in Sanlakas, which affirmed the declaration of a “state of
rebellion” as within the “calling out” power of the President, but
which emphasized that for legal intents and purposes, it should be

both regarded as “an utter superfluity,” which “only gives notice to
the nation that such a state exists and that the armed forces may be
called to prevent or suppress it,” and “devoid of any legal
significance,” as it could not “cannot diminish or violate
constitutionally protected rights.” The same premises apply as to PP
1017.
A comparative analysis of PP 427 and PP 1017, particularly their
operative clauses, is in order.
PP 427 PP 1017
NOW, THEREFORE, I, NOW, THEREFORE, I Gloria

GLORIA MACAPAGAL- Macapagal-Arroyo, President of
ARROYO, by virtue of the the Republic of the Philippines and
powers vested in me by law, Commander-in-Chief of the
hereby confirm the existence of Armed Forces of the Philippines,
an ac-
288

tual and on-going by virtue of the powers vested upon me by

rebellion, Section 18, Article 7 of the Philippine
compelling me to Constitution which states that: “The
declare a state of President. . . whenever it becomes necessary, .
rebellion. . . may call out (the) armed forces to prevent
In view of the or suppress. . . rebellion. . .,” and in my
foregoing, I am capacity as their Commander-in-Chief, do
issuing General hereby command the Armed Forces of the
Order No. 4 in Philippines, to maintain law and order
accordance with throughout the Philippines, prevent or
Section 18, Article suppress all forms of lawless violence as well
VII of the any act of insurrection or rebellion and to
Constitution, calling enforce obedience to all the laws and to all
out the Armed decrees, orders and regulations promulgated
Forces of the by me personally or upon my direction; and
Philippines and the as provided in Section 17, Article 12 of the
Philippine National Constitution do hereby declare a State of
Police to National Emergency.
immediately carry
out the necessary
actions and
measures to
suppress and quell
the rebellion with
due regard to
constitutional rights.
Let us begin with the similarities. Both PP 427 and PP 1017 are
characterized by two distinct phases. The first is the declaration
itself of a status or condition, a “state of rebellion” in PP 437, and a
“state of national emergency” under PP 1017. Both “state of
rebellion” and “state of national emergency” are terms within
constitutional contemplation. Under Section 18, Article VII, the
existence of a “state of rebellion” is sufficient premise for either the
suspension of the privilege of the writ of habeas corpus or the
declaration of martial law, though in accordance with the strict
guidelines under the same provision. Under Section 17, Article XII,
the existence of a state of national emergency is sufficient ground
for the State, during the emergency, under reasonable terms
prescribed by it, and when the public interest so requires, to
temporarily take over or direct the operation of any privately-
289
VOL. 489, MAY 3, 2006 289

owned public utility or business affected with public interest. Under

Section 23(2), Article VI, the existence of a state of national
emergency may also allow Congress to authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy.
Certainly, the declaration could stand as the first step towards
constitutional authorization for the exercise by the President, the
Congress or the State of extraordinary powers and prerogatives.
However, the declaration alone cannot put into operation these
extraordinary powers and prerogatives, as the declaration must be
followed through with a separate act providing for the actual
utilization of such powers. In the case of the “state of rebellion,”
such act involves the suspension of the writ or declaration of martial
law. In the case of the “state of national emergency,” such act
involves either an order for the takeover or actual takeover by the
State of public utilities or businesses imbued with public interest or
the authorization by Congress for the President to exercise
emergency powers.
In PP 427, the declaration of a “state of rebellion” did not lead to
the suspension of the writ or the declaration of martial law. In PP
1017, the declaration of a “state of national emergency” did not lead
to an authorization for the takeover or actual takeover of any utility
or business, or the grant by Congress to the President of emergency
powers. Instead, both declarations led to the invocation of the calling
out power of the President under Section 18, Article VII, which the
majority correctly characterizes as involving only “ordinary police
action.”
I agree with the ponencia’s holding that PP 1017 involves the
exercise by the President of the “calling out” power
14
under Section
18, Article VII. In Integrated Bar v. Zamora, the Court was
beseeched upon to review an order of President
_______________
14 392 Phil. 618; 338 SCRA 81 (2000).
290

Estrada commanding the deployment of the Marines 15

in patrols
around Metro Manila, in view of an increase in crime. The Court,
speaking through Justice Santiago Kapunan, affirmed the President’s
order, asserting that “it is the unclouded intent of the Constitution to
vest upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his judgment
it is necessary to do so in order to prevent or suppress lawless
violence, invasion or rebellion. Unless the petitioner can show that
the exercise of such discretion was gravely abused, the President’s
exercise16 of judgment deserves to be accorded respect from this
Court.” Tellingly, the order of deployment by President Estrada
was affirmed by the Court even though we held the view that the
power then involved was not the “calling out” power, but “the power
involved may be no more than the maintenance
17
of peace and order
and promotion of the general welfare.”
It was also maintained in Integrated Bar that while Section 18,
Article VII mandated two conditions—actual rebellion or invasion
and the requirement of public safety—before the suspension of the
privilege of the writ of habeas corpus or the declaration of martial
law could be declared, “these conditions are not required in the case
of the power to call out the armed forces. The only criterion is that
‘whenever it becomes necessary,’ the President may call the armed 18
forces ‘to suppress lawless violence, invasion or rebellion.” The
Court concluded that the implication was “that the President is given
full discretion and wide latitude in the19 exercise of the power to call
as compared to the two other powers.”
These propositions were affirmed in Sanlakas, wherein the
invocation of the calling out power was expressly made by
_______________
15 Id., at p. 627; pp. 102-103.

16 Id., at p. 644; p. 111.
17 Id., at p. 636; p. 103.
18 Id., at p. 643; p. 110.
19 Id.
291
VOL. 489, MAY 3, 2006 291

President Arroyo. The Court noted that for the purpose of exercising
the calling out power, the Constitution did not20
require the President
to make a declaration of a state of rebellion. At the same time, the
Court in Sanlakas acknowledged that “the President’s authority to
declare a state of rebellion springs in the main from her powers as
chief executive and, at the same 21
time, draws strength from her
Commander-in-Chief powers.”
For still unclear reasons, the majority attempts to draw a
distinction between Sanlakas and the present petitions by that the
statutory authority to declare a “state of rebellion” emanates from
the Administrative Code of 1987, particularly the provision
authorizing the President to make proclamations. As such, the
declaration of a “state of rebellion,” pursuant to statutory authority,
“was merely an act declaring a status or condition of public moment
or interest.” The majority grossly misreads Sanlakas, which
expressly roots the declaration of a state of rebellion from the
wedded powers of the Chief Executive, under Section 1, Article VII,
and as Commander-in-Chief, under Section 18, Article VII.
Insofar as PP 1017 is concerned, the calling out power is
definitely involved, in view of the directive to the Armed Forces of
the Philippines to “suppress all forms of lawless violence”. But there
are nuances to the calling out power invoked in PP 1017 which the
majority does not discuss. The directive “to suppress all forms of
lawless violence” is addressed not only to the Armed Forces but to
the police as well. The “calling out” of the police does not derive
from Section 17, Article VII, or the commander-in-chief clause, our
national police being civilian in character. Instead, the calling out of
the police is sourced from the power of the President as Chief
Executive under Section 1, Article VII, and the power of executive
control under Section 18, Article VII. Moreover, while
_______________
20 Sanlakas v. Executive Secretary, supra note 1, at p. 668.

21 Id., at p. 677.
292

the permissible scope of military action is limited to acts in

furtherance of suppressing lawless violence, rebellion, invasion, the
police can be commanded by the President to execute all laws
without
22
distinction in light of the presidential duty to execute all
laws.
Still, insofar as Section 17, Article VII is concerned, wide
latitude is accorded to the discretion of the Chief Executive in the
exercise of the “calling out” power due to a recognition that the said
power is of limited import, directed only to the Armed Forces of the
Philippines, and incapable of imposing any binding legal effect on
the citizens and other branches of the Philippines. Indeed, PP 1017
does not purport otherwise. Nothing in its operative provisions
authorize the President, the Armed Forces of the Philippines, or any
officer of the law, to perform any extra-constitutional or extra-legal
acts. PP 1017 does not dictate the suspension of any of the people’s
guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a
state of emergency under PP 1017 nor the invocation of the
calling out power therein authorizes warrantless arrests,
searches or seizures; the infringement of the right to free
expression, peaceable assembly and association and other
constitutional or statutory rights. Any public officer who
nonetheless engaged or is engaging in such extra-constitutional
or extra-legal acts in the name of PP 1017 may be subjected to
the appropriate civil, criminal or administrative liability.
To prove this point, let us now compare PP 1017 with a different
presidential issuance, one that was intended to diminish
constitutional and civil rights of the people. The said issuance,
Presidential Proclamation No. 1081, was issued by President Marcos
in 1972 as the instrument of declaring martial law. The operative
provisions read:
_______________
22 Supra note 8.
293
VOL. 489, MAY 3, 2006 293

PD 1081 PP 1017
Now, thereof, I, NOW, THEREFORE, I, Gloria
Ferdinand E. Marcos, Macapagal-Arroyo, President of the

President of the Philippines, Republic of the Philippines and
by virtue of the powers Commander-in-Chief of the Armed
vested upon me by article Forces of the Philippines, by virtue of
VII, Section 10, Paragraph the powers vested upon me by Section
(2) of the Constitution, do 18, Article 7 of the Philippine
hereby placethe entire Constitution which states that: “The
Philippines as defined in President . . . whenever it becomes
the article I, Section 1, of necessary, . . . may call out (the)
the Constitution under armed forces to prevent or suppress . .
martial law, and in my . rebellion . . . ,” and in my capacity as
capacity as their their Commander-in-Chief, do hereby
commander-in-chief, do command the Armed Forces of the
hereby command the armed Philippines, to maintain law and order
forces of the Philippines, to throughout the Philippines, prevent or
maintain law and order suppress all forms of lawless violence
throughout the Philippines, as well any act of insurrection or
prevent or suppress all rebellion and to enforce obedience to
forms of lawless violence all the laws and to all decrees, orders
as well as any act of and regulations promulgated by me
insurrection or rebellion personally or upon my direction; and
and to enforce obedience to as provided in Sect ion 17, Article 12
all the laws and decrees, of the Constitution do hereby declare a
orders and regulations State of National Emergency.
promulgated by me
personally or upon my
direction.
In addition, I do
hereby order that all
persons presently
detained, as well as others
who may hereafter be
similarly detained for the
crimes of insurrection or
rebellion, and all other
crimes and offenses
committed in furtherance
or on the occasion thereof,
or incident thereto, or in
connection therewith, for
crimes against national
security and the law of
nations, crimes, against
the fundamental laws of
the state, crimes against
public order, crimes
involving usurpation
294

of authority, rank, title and improper use of names,

uniforms and insignia, crimes committed by public
officers, and for such other crimes as will be enumerated
in Orders that I shall subsequently promulgate, as well
as crimes as a consequence of any violation of any
decree, order or regulation promulgated by me
personally or promulgated upon my direction shall be
kept under detention until otherwise ordered released by
me or by my duly designated representative. (emphasis
supplied)
Let us examine the differences between PP No. 1081 and PP 1017.

First, while PP 1017 merely declared the existence of a state of
rebellion, an act ultimately observational in character, PP 1081
“placed the23
entire Philippines under martial law,” an active
implement that, by itself, substituted civilian governmental
authority with military authority. Unlike in the 1986 Constitution,
which was appropriately crafted with an aversion to the excesses of
Marcosian martial rule, the 1935 Constitution under which PP 1081
was issued left no intervening safeguards that tempered or limited
the declaration of martial law. Even the contrast in the verbs used,
“place” as opposed to “declare,” betrays some significance. To
declare may be simply to acknowledge the existence of a particular
condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual
condition even if it did not exist before.
_______________
23 The declaration of martial law then within the President to make under authority
of Section 10(2), Article VII of the 1935 Constitution.
295
VOL. 489, MAY 3, 2006 295

Both PP 1081 and PP 1017 expressly invoke the calling out power.
However, the contexts of such power are wildly distaff in light of PP
1081’s accompanying declaration of martial law. Since martial law
involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is
significantly greater than the one involved in PP 1017, which could
only contemplate the enforcement of existing laws in relation to the
suppression of lawless violence, rebellion or invasion and the

maintenance of general peace and order.
Further proof that PP 1081 intended a wholesale suspension of
civil liberties in the manner that PP 1017 does not even ponder upon
is the subsequent paragraph cited, which authorizes the detention
and continued detention of persons for a plethora of crimes not only
directly related to the rebellion or lawless violence, but of broader
range such as those “against national security,” or “public order.”
The order of detention under PP 1081 arguably includes every crime
in the statute book. And most alarmingly, any person detained by
virtue of PP 1081 could remain in perpetual detention unless
otherwise released upon order of President Marcos or his duly
authorized representative.
Another worthy point of contrast concerns how the Supreme
Court, during the martial law era, dealt with the challenges raised
before it to martial law rule and its effects on civil liberties. While
martial law stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and
liberties could have stood ground against even the most fundamental
of human rights abuses ostensibly protected under the 1935 and
1973 constitutions and under international declarations
24
and
conventions. Yet a perusal of Aquino v. Enrile, the case that
decisively affirmed the validity of martial law rule, shows that most
of the Justices then sitting exhibited diffidence guised though as
defer-
_______________
24 No. L-35546, 17 September 1974, 59 SCRA 183.
296

ence towards the declaration of martial law. Note these few excerpts
from the several opinions submitted in that case which stand as
typical for those times:
“The present state of martial law in the Philippines is peculiarly Filipino and
fits into no traditional patterns or judicial precedents. x x x In the first place
I am convinced (as are the other Justices), without need of receiving
evidence as in an ordinary adversary court proceeding, that a state of
rebellion existed in the country when Proclamation No. 1081 was issued. It
was a matter of contemporary history within the cognizance not only of the
courts but of all observant people residing here at that time. x x x The state
of rebellion continues up to the present. The argument that while armed
hostilities go on in several provinces in Mindanao there are none in other
regions except in isolated pockets in Luzon, and that therefore there is no

need to maintain martial law all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modern setting. It does not consist
simply of armed clashes between organized and identifiable groups on fields
of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual
fighting. Underground propaganda, through printed newssheets or rumors
disseminated in whispers; recruiting of armed and ideological adherents,
raising of funds, procurement of arms and materiel, fifth-column activities
including sabotage and intelligence—all these are part of the rebellion
which by their nature are usually conducted far from the battle fronts. They
cannot be
25
counteracted effectively unless recognized and dealt with in that
context.
xxx
[T]he fact that courts are open cannot be accepted as proof that the
rebellion and insurrection, which compellingly called for the declaration of
martial law, no longer imperil the public safety. Nor are the many surface
indicia adverted to by the petitioners (the increase in the number of tourists,
the choice of Manila as the site of international conferences and of an
international beauty contest) to be regarded as evidence that the threat to
public safety has abated. There is actual armed combat, attended by the
somber panoply of war, raging in Sulu and Cotabato, not to mention the
Bicol region
_______________
25 Aquino, Jr. v. Enrile, Id., at pp. 240-241.
297
VOL. 489, MAY 3, 2006 297

and Cagayan Valley. I am hard put to say, therefore, that the Government’s
claim is baseless.
I am not insensitive to the plea made here in the name of individual
liberty. But to paraphrase Ex parte Moyer, if it were the liberty alone of the
petitioner Diokno that is in issue we would probably resolve the doubt in his
favor and grant his application. But the Solicitor General, who must be
deemed to represent the President and the Executive Department in this
case, has manifested that in the President’s judgment peace and tranquility
cannot be speedily restored in the country unless the petitioners and others
like them meantime remain in military custody. For, indeed, the central
matter involved is not merely the liberty of isolated individuals,
26
but the
collective peace, tranquility and security of the entire nation.
xxx
It may be that the existence or non-existence or imminence of a rebellion
of the magnitude that would justify the imposition of martial law is an
objective fact capable of judicial notice, for a rebellion that is not of general
knowledge to the public cannot conceivably be dangerous to public safety.
But precisely because it is capable of judicial notice, no inquiry is needed to
determine the propriety of the Executive’s action.
Again, while the existence of a rebellion may be widely known, its real
extent and the dangers it may actually pose to the public safety are not
always easily perceptible to the unpracticed eye. In the present day practices
of rebellion, its inseparable subversion aspect has proven to be more
effective and important than “the rising (of persons) publicly and taking
arms against the Government” by which the Revised Penal Code
characterizes rebellion as a crime under its sanction. Subversion is such a
covert kind of antigovernment activity that it is very difficult even for army
intelligence to determine its exact area of influence and effect, not to
mention the details of its forces and resources. By subversion, the rebels can
extend their field of action unnoticed even up to the highest levels of the
government, where no one can always be certain of the political complexion
of the man next to him, and this does not exclude the courts. Arms,
ammunition and all kinds of war equipment travel and are transferred in
deep secrecy to strategic locations,
_______________
26 Aquino, Jr. v. Enrile, Id., at pp. 262-263, Castro, J., Separate Opinion.
298

which can be one’s neighborhood without him having any idea of what is
going on. There are so many insidious ways in which subversives act, in fact
too many to enumerate, but the point that immediately suggests itself is that
they are mostly incapable of being proven in court, so how are We to make a
judicial inquiry about them that can satisfy our judicial conscience.
The Constitution definitely commits it to the Executive to determine the
factual bases and to forthwith act as promptly as possible to meet the
emergencies of rebellion and invasion which may be crucial to the life of the
nation. He must do this with unwavering conviction, or any hesitancy or
indecision on his part will surely detract from the needed precision in his
choice of the means he would employ to repel the aggression. The
apprehension that his decision might be held by the Supreme Court to be a
transgression of the fundamental law he has sworn to ‘defend and preserve’
would deter him from acting when precisely it is most urgent and 27critical
that he should act, since the enemy is about to strike the mortal blow.
xxx
To start with, Congress was not unaware of the worsening conditions of
peace and order and of, at least, evident insurgency, what with the numerous
easily verifiable reports of open rebellious activities in different parts of the
country and the series of rallies and demonstrations, often bloody, in Manila
itself and other centers of population, including those that reached not only
the portals but even the session hall of the legislature, but the legislators
seemed not to be sufficiently alarmed or they either were indifferent or did
not know what to do under the circumstances. Instead of taking immediate
measures to alleviate the conditions denounced and decried by the rebels
and the activists, they debated and argued long on palliatives without
coming out with anything substantial much less satisfactory in the eyes of
those who were seditiously shouting for reforms. In any event, in the face of
the inability of Congress to meet the situation, and prompted by his
appraisal of a critical situation that urgently called for immediate action, the
only alternative open to the President was to resort to the28 other
constitutional source of extraordinary powers, the Constitution itself.
_______________
27 Id., at pp. 398-399, Barredo, J., concurring.

28 Id., at pp. 405-406, Barredo, J., concurring.
299
VOL. 489, MAY 3, 2006 299

xxx
Proclamation 1081 is in no sense any more constitutionally offensive. In
fact, in ordering detention of persons, the Proclamation pointedly limits
arrests and detention only to those “presently detained, as well as others
who may hereafter be similarly detained for the crimes of insurrection or
rebellion, and all other crimes and offences committed in furtherance or on
the occasion thereof, or incident thereto, or in connection therewith, for
crimes against national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as
will be enumerated in Orders that I shall subsequently promulgate, as well
as crimes as a consequence of any violation of any decree, order or
regulation promulgated by me personally or promulgated upon my
direction.” Indeed, even in the affected areas, the Constitution has not been
really suspended much less discarded. As contemplated in the fundamental
law itself, it is merely in a state of anaesthesia, to the end that the much
needed major 29
surgery to save the nation’s life may be successfully
undertaken.”
xxx
The quoted lines of reasoning can no longer be sustained, on many

levels, in these more enlightened times. For one, as a direct reaction
to the philosophy of judicial inhibition so frequently exhibited
during the Marcos dictatorship, our present Constitution has

explicitly mandated judicial review of the acts of government as part
of the judicial function. As if to rebuff Aquino, the 1987 Constitution
expressly allows the Supreme Court to review the sufficiency of the
factual basis of the proclamation of martial law and decide the30 same
within 30 days from the filing of the appropriate case. The
Constitution also emphasizes that a state of martial law did not
suspend the operation of the Constitution or supplant the
_______________
29 Id., at p. 423, Barredo, J., concurring.

30 Constitution, Section 18, Article VII.
300

31
functioning of the judicial and legislative branches. The expediency
of hiding behind the political question doctrine can no longer be
resorted to.
For another, the renewed emphasis within domestic and
international society on the rights of people, as can be seen in
worldwide democratic movements beginning with our own in 1986,
makes it more difficult for a government established and governed
under a democratic constitution, to engage in official acts that run
contrary to the basic tenets of democracy and civil rights. If a
government insists on proceeding otherwise, the courts will stand in
defense of the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of
national governmental instrumentalities, and the principle of
republicanism all ensure that the constitutional government retains
significant powers and prerogatives, for it is through such measures
that it can exercise sovereign will in behalf of the people.
Concession to those presidential privileges and prerogatives should
be made if due. The abuses of past executive governments should
not detract from these basic governmental powers, even as they may
warrant a greater degree of wariness from those institutions that
balance power and the people themselves. And the rule of law
should prevail above all. The damage done by martial rule was not
merely personal but institutional, and the proper rebuke to the
caprices and whims of the32 iniquitous past is to respect the confines
of the restored rule of law.
Nothing in PP 1017, or any issuance by any President since
Aquino, comes even close to matching PP 1081. It is a rank insult
to those of us who suffered or stood by those oppressed under
PP 1081 to even suggest that the innocuous PP 1017 is of

equivalent import.
_______________
31 Constitution, Section 18, Article VII.

32 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397.
301
VOL. 489, MAY 3, 2006 301

PP 1017 Does Not Purport or

Pretend that the President Has
The Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017

and PP 1081, harped upon by some of the petitioners and alluded to
by the majority. PP 1017 contains a command to the Armed Forces
“to enforce obedience to all the laws and to all decrees, orders and
regulations by [the President].” A similar command was made under
PP 1081. That in itself should not be a cause of surprise, since both
PP 1017 and PP 1081 expressly invoked the “calling out” power,
albeit in different contexts.
The majority however considers that since the President does not
have the power to issue decrees, PP 1017 is unconstitutional insofar
as it enforces obedience “to all decrees.” For one, it should be made
clear that the President currently has no power to issue decrees, and
PP 1017 by no measure seeks to restore such power to the President.
Certainly, not even a single decree was issued by President Arroyo
during the several days PP 1017 was in effect, or during her term
thus far for that matter.
At the same time, such power did once belong to the President
during the Marcos era and was extensively utilized by President
Marcos. It has to be remembered that chafed as we may have under
some of the Marcos decrees, per the 1987 Constitution they still
remain as part of the law of the land unless particularly stricken
down or repealed by subsequent enactments. Indeed, when the
President calls upon the Armed Forces to enforce the laws, those
subsisting presidential decrees issued by President Marcos in the
exercise of his legislative powers are included in the equation.
This view is supported by the rules of statutory construction. The
particular passage in PP 1017 reads “to enforce obedience to all the
laws and to all decrees, orders and regulations,” with the phrases “all
the laws and to all decrees” sepa-
302

rated by a comma from “orders and regulations promulgated by

me.” Inherently, laws and those decrees issued by President Marcos
in the exercise of his legislative powers, and even those executive
issuances of President Aquino in the exercise of her legislative
powers, belong to the same class, superior in the hierarchy of laws
than “orders and regulations.” The use of the conjunction 33
“and”
denotes a joinder or union, “relating the one to the other.” The use
of “and” establishes an association between laws and decrees
distinct from orders and regulations, thus permitting the application
of the doctrine of noscitur a sociis to construe “decrees” as those
decrees which at present have the force of law. The dividing comma
further signifies the segregation of concepts between “laws and
decrees” on one hand, and “orders and regulations” on the other.
Further proof that “laws and decrees” stand as a class distinct
from “orders and regulations” is the qualifying phrase “promulgated
by me,” which necessarily refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by
President Arroyo since she assumed office in 2001. “Laws and
decrees” do not relate only to those promulgated by President
Arroyo, but other laws enacted by past sovereigns, whether they be
in the form of the Marcos presidential decrees, or acts enacted by the
American Governor-General such as the Revised Penal Code.
Certainly then, such a qualification sufficiently addresses the fears
of the majority that PP 1017 somehow empowers or recognizes the
ability of the current President to promulgate decrees. Instead, the
majority pushes an interpretation that, if pursued to its logical end,
suggests that the President by virtue of PP 1017 is also arrogating
unto herself, the power to promulgate laws, which are in the mold of
enactments from Congress. Again, in this respect, the grouping of
“laws” and “decrees” separately from “orders” and “regulations”
signifies that the
_______________
33 See R. Agpalo, Statutory Construction, p. 206.
303
VOL. 489, MAY 3, 2006 303

President has not arrogated unto herself the power to issue decrees
in the mold of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to
decrees which the current President could not very well issue, such
intention is of no consequence, since the proclamation does not
intend or pretend to grant the President such power in the first place.
By no measure of contemplation could PP 1017 be interpreted as
reinstating to the President the power to issue decrees.
I cannot see how the phrase “enforce obedience to decrees” can
be the source of constitutional mischief, since the implementation of
PP 1017 will not vest on the President the power to issue such
decrees. If the Court truly feels the need to clarify this point, it can
do so with the expediency of one sentence or even a footnote. A
solemn declaration that the phrase is unconstitutional would be like
killing a flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of
The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, nonexistent as

they may be in relation to the citizenry, the courts or on Congress.
Still, there is another purpose and dimension behind PP 1017 that
fall within the valid prerogatives of the President.
The President, as head of state, is cast in a unique role in our
polity matched by no other individual or institution. Apart from the
constitutional powers vested on the President lie those powers
rooted in the symbolic functions of the office. There is the common
expectation that the President should stand as the political, moral
and social leader of the nation, an expectation not referred to in of
the oath of office, but expected as a matter of tradition. In fact, a
President may be cast in crisis even if the Chief Executive has
broken no law, and faithfully executed those laws that exist, simply
because
304

the President has failed to win over the hearts and minds of the
citizens. As a Princeton academic, Woodrow Wilson once observed
that with the People, the President is everything, and without them
nothing, and the sad decline of his own eventual presidency is no
better proof of the maxim. Such are among the vagaries of the
political office, and generally beyond judicial relief or remedy.
Justice Robert Jackson’s
34
astute observation in Youngstown Sheet
& Tube Co. v. Sawyer on the unique nature of the presidency, has
been widely quoted:
“Executive power has the advantage of concentration in a single head in

whose choice the whole Nation has a part, making him the focus of public
hopes and expectations. In drama, magnitude, and finality, his decisions so
far overshadow any others that almost alone he fills the public eye and ear.
No other personality in public life can begin to compete with him in access
to the public mind through modern methods of communications. By his
prestige as head of state and his influence upon public opinion he exerts a
leverage upon those who are supposed35 to check and balance his power
which often cancels their effectiveness.”
Correspondingly, the unique nature of the office affords the

President the opportunity to profoundly influence the public
discourse, not necessarily through the enactment or enforcement of
laws, but specially by the mere expediency of taking a stand on the
issues of the day. Indeed, the President is expected to exercise
leadership not merely through the proposal and enactment of laws,
but by making such vital stands. U.S. President Theodore Roosevelt
popularized the notion of the presidency as a “bully pulpit,” in line
with his belief that the President was the steward of the people
limited only by the specific restrictions and prohibitions appearing
in the Constitution, or impleaded by Congress under its
constitutional powers.
_______________
34 343 U.S. 579, 653-654, J. Jackson, concurring.

35 Ibid.
305
VOL. 489, MAY 3, 2006 305

Many times, the President exercises such prerogative as a responsive

measure, as after a mass tragedy or calamity. Indeed, when the
President issues a declaration or proclamation of a state of national
mourning after a disaster with massive casualties, while perhaps de
rigeur, is not the formalistic exercise of tradition, but a statement
that the President, as the representative of the Filipino people,
grieves over the loss of life and extends condolences in behalf of the
people to the bereaved. This is leadership at its most solemn.
Yet the President is not precluded, in the exercise of such role, to
be merely responsive. The popular expectation in fact is of a pro-
active, dynamic chief executive with an ability to identify problems
or concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of state,
very well has the capacity to use the office to garner support for
those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put America
on track to the goal of placing a man on the moon. Those memorable
presidential speeches memorized by schoolchildren may have not,
by themselves, made operative any law, but they served not only
merely symbolic functions, but help profoundly influence towards
the right direction, the public opinion in the discourse of the times.
Perhaps there was no more dramatic example of the use of the “bully
pulpit” for such noble purposes than in 1964, when an American
President from Texas stood before a Congress populated by many
powerful bigots, and fully committed himself as no other President
before to the cause of civil rights with his intonation of those lines
from the civil rights anthem, “we shall overcome.”
From an earlier era in American history, Lincoln’s Emancipation
Proclamation stands out as a presidential declaration which clearly
staked American polity on the side of the democratic ideal, even
though the proclamation itself was of dubitable legal value. The
proclamation, in short form, “freed the slaves,” but was not itself
free of legal questions. For one, the notion that the President could,
by himself, alter the civil
306

and legal status of an entire class of persons was dubious then and
now, although President Lincoln did justify his action as in the
exercise of his powers as commander-in-chief during wartime, “as a
fit and necessary war measure for suppressing [the] rebellion.”
Moreover, it has been pointed out that the Proclamation only freed
those slaves in those states which were then in rebellion, and it
eventually took the enactment of the Thirteenth Amendment of the 36
U.S. Constitution to legally abolish involuntary servitude.
Notwithstanding the legal haze surrounding it, the Emancipation
Proclamation still stands as a defining example not only of the
Lincoln Presidency, but of American democratic principles. It may
be remembered to this day not exactly as an operational means by
which slaves were actually freed, but as a clear rhetorical statement
that slavery could no longer thenceforth stand.
The President as Chief Government Spokesperson of the
democratic ideals is entrusted with a heady but comfortable pursuit.
But no less vital, if somewhat graver, is the role of the President as
the Chief Defender of the democratic way of life. The “calling out”
power assures the President such capability to a great extent, yet it
will not fully suffice as a defense of democracy. There is a need for
the President to rally the people to defend the Constitution which
guarantees the democratic way of life, through means other than

coercive. I assert that the declaration of a state of emergency, on
premises of a looming armed threat which have hardly been
disputed, falls within such proper functions of the President as the
defender of the Constitution. It was designed to inform the people of
the existence of such a threat, with the expectation that the citizenry
would not aid or abet those who would overturn through force the
democratic government. At the same time, the Proclamation itself
does not violate the Constitution as it does not call for or put into
operation the sus-
_______________
36 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed.,
at pp. 119-120.
307
VOL. 489, MAY 3, 2006 307

pension or withdrawal of any constitutional rights, or even create or

diminish any substantive rights.
I submit that it would be proper for the Court to recognize that
PP 1017 strikes a commendable balance between the Constitution,
the “calling out” power, and the inherent function of the Presidency
as defender of the democratic constitution. PP 1017 keeps within the
scope and limitations of these three standards. It asserts the primacy
of the democratic order, civilian control over the armed forces, yet
respects constitutional and statutory guarantees of the people.
II. Section 17, Article XII

of the Constitution
In Relation to PP 1017
My next issue with the majority pertains to the assertion that the
President does not have the power to take over public utilities or
businesses impressed with public interest under Section 17, Article
XII of the Constitution without prior congressional authorization. I
agree that the power of the State to take over such utilities and
businesses is highly limited, and should be viewed with suspicion if
actually enforced.
Yet qualifications are in order with regard to how Section 17,
Article XII actually relates of PP 1017.
I agree with the majority that a distinction should be asserted as
between the power of the President to declare a state of emergency,
and the exercise of emergency powers under Section 17, Article XII.
The President would have the power to declare a state of emergency

even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its
face and as applied, did not involve the actual takeover of any public
utility or business impressed with public interest. To some minds,
the police action in relation to the Daily Tribune may have flirted
with such power, yet ultimately the
308

newspaper was able to independently publish without police

interference or court injunction. It may be so that since PP 1017 did
make express reference to Section 17, Article XII, but it should be
remembered that the constitutional provision refers to a two-fold
power of the State to declare a national emergency and to take over
such utilities and enterprises. The first power under Section 17,
Article XII is not distinct from the power of the President, derived
from other constitutional sources, to declare a state of national
emergency. Reference to Section 17, Article XII in relation to the
power to declare a state of national emergency is ultimately
superfluous. A different situation would obtain though if PP 1017
were invoked in the actual takeover of a utility or business, and in
such case, full consideration of the import of Section 17, Article XII
would be warranted. But no such situation obtains in this case, and
any discussion relating to the power of the State to take over a utility
or business under Section 17, Article XII would ultimately be obiter
dictum.
I respectfully submit that the Court, in these petitions, need not
have engaged this potentially contentious issue, especially as it
extends to whether under constitutional contemplation, the President
may act in behalf of the State in exercising the powers under Section
17, Article XII. Nonetheless, considering that the majority has
chosen to speak out anyway, I will express agreement that as a
general rule, the President may exercise such powers under Section
17, Article XII only under the grant of congressional approval.
Certainly, the notion that congressional authority is required under
Section 17, Article XII is not evident from the provision. Even Fr.
Bernas notes that Section 17 does not require, as does Article VI,
Section 23(2), that the authorization be “by law,” thus leaving 37
the
impression that the authorization can come from the President.
_______________
37 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 2003 ed., at p. 1183.
309
VOL. 489, MAY 3, 2006 309

After the 1989 coup d’etat, President Aquino issued Proclamation

No. 503 on 6 December 1989, declaring a state of national
emergency, and referring therein to Section 17, Article XII by citing
the entire provision. The declaration was subsequently reaffirmed by
Congress when two weeks after, it enacted Republic Act No. 6826.
Notably, Section 3(3) of the law authorized the President “to
temporarily takeover or direct the operation of any privately-owned
public utility or business affected with public interest that violates
the herein declared national policy.” Tellingly, however, such
authority was granted by Congress expressly “pursuant to Article
VI, Section 23(2) of the Constitution,” and not the take-over
provision in Section 17, Article XII. Evidently, the view that Section
17, Article XII requires prior congressional authority has some
novelty to it.
Still, I concede that it is fundamentally sound to construe Section
17 as requiring congressional authority or approval before the
takeover under the provision may be effected. After all, the taking
over of a privately owned public utility or business affected with
public interest would involve an infringement on the right of private
enterprise to profit; or perhaps even expropriation for a limited
period. Constitutionally, the taking of 38 property can only be
accomplished with due process of law, and the enactment of
appropriate legislation prescribing the terms and conditions under
which the President may exercise the powers of the State under
Section 17 stands as the best assurance that due process of law
would be observed.
The fact that Section 17 is purposely ambivalent as to whether
the President may exercise the power therein with or without
congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in
extreme situations wherein obtention of congressional authority is
impossible or inexpedient considering the emer-
_______________
38 See Section 1, Article III, CONSTITUTION.
310

gency. I thus dissent to any proposition that such requirement is

absolute under all circumstances. I maintain that in such extreme
situations, the President may exercise such authority subject to
judicial review.
It should be admitted that some emergencies are graver and more
imminent than others. It is not within the realm of impossibility that
by reason of a particularly sudden and grave emergency, Congress
may not be able to convene to grant the necessary congressional
authority to the President. Certainly, if bombs from a foreign invader
are falling over Manila skies, it may be difficult, not to mention
unnecessarily onerous, to require convening Congress before the
President may exercise the functions under Section 17, Article XII.
The proposition of the majority may be desirable as the general rule,
but the correct rule that should be adopted by the Court should not
be so absolute so as to preclude the exercise by the President of such
power under extreme situations.
In response to this 39
argument, the majority cites portions of
Araneta v. Dinglasan, most pertinent of which reads: “The point is,
under this framework of government, legislation is preserved for
Congress all the time, not excepting periods of crisis no matter how
serious.”
For one, Araneta did not involve a situation wherein the
President attempted to exercise emergency powers without
congressional authority; concerning as it did the exercise by
President Quirino of those emergency powers conferred several
years earlier by Congress to President Quezon at the onset of the
Pacific phase of World War II. The Court therein ruled that the
emergency that justified then the extraordinary grant of powers had
since expired, and that there no longer existed any authority on the
part of the President to exercise such powers, notwithstanding that
the law, Commonwealth Act No. 671, “did not in term fix the
duration of its effectiveness.”
_______________
39 84 Phil. 368 (1949).
311
VOL. 489, MAY 3, 2006 311

Clearly, the context in which the Court made that observation in

Araneta is not the same context within which my own observations
oscillate. My own submission is premised on the extreme situation
wherein Congress may be physically unable to convene, an
exceptional circumstance which the hard-line stance of the majority
makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded

that such extreme circumstance could occur, when it noted President
Quezon’s claim that he was impelled to call for a special session of
the National Assembly after foreseeing that “it was most unlikely
that the Philippine Legislature would hold its40 next regular session
which was to open on January 1, 1942.” That the National
Assembly then was able to convene and pass Commonwealth Act
No. 671 was fortunate, but somewhat a luxury nonetheless. Indeed,
it is not beyond the realm of possibility that the emergency
contemplated would be so grave that a sufficient number of
members of Congress would be physically unable to convene and
meet the quorum requirement.
Ultimately though, considering that the authorized or actual
takeover under Section 17, Article XII, is not presented as a properly
justiciable issue. Nonetheless, and consistent with the general tenor,
the majority has undertaken to decide this non-justiciable issue, and
to even place their view in the dispositive portion in a bid to
enshrine it as doctrine. In truth, the Court’s pronouncement on this
point is actually obiter.It is hoped that should the issue become ripe
for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations
wherein congressional approval is impossible or highly impractical
to obtain, the powers under Section 17, Article XII may be
authorized by the President.
_______________
40 Id., at p. 379.
312

III. Overbreadth and “Void for Vagueness”

Doctrines Applicable Not Only To
Free Speech Cases
The majority states that “the overbreadth doctrine is an analytical

tool developed
41
for testing ‘on their faces’ statutes in free speech
cases,” and may thus be entertained “in cases involving statutes
which, by their terms, seek to regulate only ‘spoken words,’ and not
conduct. A similar characterization is made as to the “void for
vagueness” doctrine, which according to the majority, is “subject to
the same principles governing overbreadth doctrine . . . also an
analytical
42
tool for testing ‘on their faces’ statutes in free speech
cases.”
As I noted43 in my Separate Opinion in Romualdez v.

Sandiganbayan, citing Justice Kapunan, there is a viable distinction
between “void for vagueness” and “overbreadth” which the majority
sadly ignores.
“A view has been proffered that “vagueness and overbreadth doctrines are
not applicable to penal laws.” These two concepts, while related, are distinct
from each other. On one hand, the doctrine of overbreadth applies
generally to statutes that infringe upon freedom of speech. On the other
hand, the “voidfor-vagueness” doctrine applies to criminal laws, not
merely those that regulate speech or other fundamental constitutional
right. (not merely those that regulate speech or other fundamental
constitutional rights.) The fact that a particular criminal statute does not
infringe upon free speech does not mean44 that a facial challenge to the statute
on vagueness grounds cannot succeed.”
_______________
41 Decision, infra.
42 Id.
43 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
44 Id., at p. 398, citing Estrada v. Sandiganbayan, 421 Phil. 290; 369 SCRA 394,
J. Kapunan, dissenting, at pp. 382-384; p. 529.
313
VOL. 489, MAY 3, 2006 313

The distinction may prove especially crucial since there has been a
long line of cases in American Supreme Court jurisprudence
wherein penal statutes have been invalidated on the ground that they
were “void for 45
vagueness.” As I cited in Romualdez v.
Sandiganbayan,
46
these cases are Connally
47
v. General Construction48
Co., Lanzetta v. State of New Jersey, 49 Bouie v. City of Columbia,
50
Papachristou v. City of Jacksonville,
51
Kolender v. Lawson, and
City of Chicago v. Morales.
Granting that perhaps as a general
52
rule, overbreadth may find
application only in “free speech” cases, it is on the other hand very
settled doctrine that a penal statute regulating conduct, not speech,
may be invalidated on the ground of “void for vagueness.” In
Romualdez, I decried the elevation of the suspect and radical new
doctrine that the “void for vagueness” challenge cannot apply other
than in free speech cases. My view on this point has not changed,
and insofar as the ponencia would hold otherwise, I thus dissent.
Moreover, even though the argument that an overbreadth
challenge can be maintained only in free speech cases has more
jurisprudential moorings, the rejection of the challenge on that basis
alone may prove unnecessarily simplistic. I maintain that there is

an even stronger ground on
_______________
45 Id., at pp. 398-401.

46 269 U.S. 385, 393 (1926).
47 306 U.S. 451 (1939).
48 378 U.S. 347 (1964).
49 405 U.S. 156 (1972).
50 461 U.S. 352 (1983).
51 Case No. 97-1121, 10 June 1999.
52 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme
Court invalidated a portion of the Subversive Control Activities Act on the ground of
overbreadth as it sought to proscribe the exercise the right of free association, also
within the First Amendment of the United States Constitution but a distinct right
altogether from free expression.
314

which the overbreadth and “void for vagueness” arguments can

be refuted—that Presidential Proclamation 1017 (PP 1017)
neither creates nor diminishes any rights or obligations
whatsoever. In fact, I submit again that this proposition is the
key perspective from which the petitions should be examined.
IV. General Order No. 5

Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is

generally constitutional. However, they make an unnecessary
distinction with regard to “acts of terrorism,” pointing out that
Congress has not yet passed a law defining and punishing terrorism
or acts of terrorism.
That may be the case, but does the majority seriously suggest that
the President or the State is powerless to suppress acts of terrorism
until the word “terrorism” is defined by law? Terrorism has a widely
accepted meaning that encompasses many acts already punishable
by our general penal laws. There are 53
several United Nations and
multilateral conventions on terrorism, as well as declarations made
by the United Nations
54
General Assembly denouncing and seeking to
combat terrorism. There is a general sense in international law as to
what constitutes terrorism, even if no precise defini-
_______________
53 To name a few, the Convention on the Prevention and Punishment of Crimes

against Internationally Protected Persons, including Diplomatic Agents (1973);
International Convention for the Suppression of Terrorist Bombings (1997);
International Convention for the Suppression of the Financing of Terrorism (1999);
the International Convention for the Suppression of Acts of Nuclear Terrorism (2005).
See “United Nations Treaty Collection—Conventions on Terrorism,”
http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April 2006).
54 See, e.g., Resolution No. 49/60, Adopted by the United Nations General
Assembly on 17 February 1995.
315
VOL. 489, MAY 3, 2006 315

tion has been adopted as binding on all nations. Even without an

operative law specifically defining terrorism, the State already has
the power to suppress and punish such acts of terrorism, insofar as
such acts are already punishable, as they almost always are, in our
extant general penal laws. The President, tasked with the execution
of all existing laws, already has a sufficient mandate to order the
Armed Forces to combat those acts of terrorism that are already
punishable in our Revised Penal Code, such as rebellion, coup
d’etat, murder, homicide, arson, physical injuries, grave threats, and
the like. Indeed, those acts which under normal contemplation
would constitute terrorism are associated anyway with or subsumed
under lawless violence, which is a term found in the Constitution
itself. Thus long ago, the State has already seen it fit to punish such
acts.
Moreover, General Order No. 5 cannot redefine statutory crimes
or create new penal acts, since such power belongs to the legislative
alone. Fortunately, General Order No. 5 does not assume to make
such redefinitions. It may have been a different matter had General
Order No. 5 attempted to define “acts of terrorism” in a manner that
would include such acts that are not punished under our statute
books, but the order is not comported in such a way. The proper
course of action should be to construe “terrorism” not in any legally
defined sense, but in its general sense. So long as it is understood
that “acts of terrorism” encompasses only those acts which are
already punishable under our laws, the reference is not
constitutionally infirm.
The majority cites a theoretical example wherein a group of
persons engaged in a drinking spree may be arrested by the military
or police in the belief that they were committing acts of terrorism
pursuant to General Order No. 5. Under the same logical framework
that group of persons engaged in a drinking spree could very well be
arrested by the military or police in the belief that they are

committing acts of lawless violence pursuant to General Order No.
5, instead of acts of terrorism. Obviously such act would be “abuse
and oppres-
316

sion” on the part of the military and the police, whether justified
under “lawless violence” or “acts of terrorism.” Yet following the
logic of the majority, the directive to prevent acts of “lawless
violence” should be nullified as well.
If the point of the majority is that there are no justiciable
standards on what constitutes acts of terrorism, it should be pointed
out that only the following scenarios could ensue. For one, a person
would actually be arrested and charged with “acts of terrorism”, and
such arrest or charge would be thrown out of the courts, since our
statute books do not criminalize the specific crime of terrorism.
More probably, a person will be arrested and charged for acts that
may under the layperson’s contemplation constitutes acts of
terrorism, but would be categorized in the information and charge
sheet as actual crimes under our Revised Penal Code. I simply
cannot see how General Order No. 5 could validate arrests and
convictions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of
definition and possible broad context of “acts of terrorism,” seems to
be positively applying the arguments of “overbreadth” or “void for
vagueness,” arguments which they earlier rejected as applicable only
in the context of free expression cases. The inconsistency is breath-
taking. While I disagree with the majority-imposed limitations on
the applicability of the “overbreadth” or “void for vagueness”
doctrines, I likewise cannot accede to the application of those
doctrines in the context of General Order No. 5, for the same reason
that they should not apply to PP 1017. Neither General Order No. 5
nor PP 1017 is a penal statute, or have an operative legal effect of
infringing upon liberty, expression or property. As such, neither
General Order No. 5 nor PP 1017 can cause the deprivation of life,
liberty or property, thus divorcing those issuances from the context
of the due process clause. The same absence of any binding legal
effect of these two issuances correspondingly disassociates them
from the constitutional infringement of free expression or
association. Neither “void for vagueness” nor “overbreadth”
therefore lie.
317
VOL. 489, MAY 3, 2006 317

Another point. The majority concludes from General Order No. 5

that the military or police is limited in authority to perform those
acts that are “necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence,” and
such acts committed beyond such authority are considered illegal. I
do not dispute such conclusion, but it must be emphasized that
“necessary and appropriate actions and measures” precisely do not
authorize the military or police to commit unlawful and
unconstitutional acts themselves, even if they be geared towards
suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or obligations,
or diminish existing ones, it necessarily follows that General
Order No. 5, even if premised on a state of emergency, cannot
authorize the military or police to ignore or violate
constitutional or statutory rights, or enforce laws completely
alien to the suppression of lawless violence. Again, following the
cardinal principle of legal hermeneutics earlier adverted to, General
Order No. 5 should be viewed in harmony with the Constitution, and
only if the Order irreconcilably deviates from the fundamental law
should it be struck down.
V. Court Should Refrain Making Any Further Declaration,

For Now, Relating to the Individual Grievances
Raised by the Petitioners in Relation
To PP 1017
I respectfully disagree with the manner by which the majority would

treat the “void as applied” argument presented by the petitioners.
The majority adopts the tack of citing three particular injuries
alleged by the petitioners as inflicted with the implementation of PP
1017. The majority analyzes the alleged injuries, correlates them to
particular violations of the Bill of Rights, and ultimately concludes
that such violations were illegal.
318

The problem with this approach is that it would forever deem the
Court as a trier or reviewer at first instance over questions involving
the validity of warrantless arrests, searches, seizures and the
dispersal of rallies, all of which entail a substantial level of factual
determination. I agree that PP 1017 does not expand the grounds for
warrantless arrests, searches and seizures or dispersal of rallies, and

that the proclamation cannot be invoked before any court to assert
the validity of such unauthorized actions. Yet the problem with
directly adjudicating that the injuries inflicted on David, et al., as
illegal, would be that such would have been done with undue haste,
through an improper legal avenue, without the appropriate trial of
facts, and without even impleading the particular officers who
effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the
petitioners upon the implementation of PP 1017 are a source of
grave concern. Indubitably, any person whose statutory or
constitutional rights were violated in the name of PP 1017 or
General Order No. 5 deserves redress in the appropriate civil or
criminal proceeding, and even the minority wishes to makes this
point as emphatically clear, if not moreso, as the majority. Yet a
ruling from this Court, without the proper factual basis or
prayer for remuneration for the injury sustained, would
ultimately be merely symbolic. While the Court will not be
harmed by a symbolic reaffirmation of commitment to the
principles in the Bill of Rights, it will be harmed by a ruling that
unduly and inappropriately expands the very limited function of
the Court as a trier of facts on first instance.55
In my dissent in Teves v. Sandiganbayan, I alluded to the fact
that our legal system may run counter-intuitive in the sense that the
seemingly or obviously guilty may still, after trial, be properly
acquitted or exonerated; to the extent that
_______________
55 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga,
dissenting.
319
VOL. 489, MAY 3, 2006 319

even an accused who murders another person in front of live

television cameras broadcast to millions of 56sets is not yet necessarily
guilty of the crime of murder or homicide. Hence, the necessity of
a proper trial so as to allow the entire factual milieu to be presented,
tested and evaluated before the court. In my theoretical example, the
said accused should nonetheless be acquitted if the presence of
exempting circumstances is established. The same principle applies
in these cases. Certainly, we in the Court can all agree that PP 1017
cannot be invoked to justify acts by the police or military officers
that go beyond the Constitution and the laws. But the course of
prudence dictates that the pronouncement of such a doctrine, while
enforceable in a court of law, should not yet extend itself to specific

examples that have not yet been properly litigated. The function of
this Court is to make legal pronouncements not based on
“obvious” facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures
were “illegal” would likewise preclude any meaningful review or
reevaluation of pertinent legal doctrines that otherwise could have
been reexamined had these acts been properly challenged in regular
order. For example, the matter of the warrantless arrests in these
cases could have most certainly compelled the Court to again
consider the doctrine laid down in Umil v. Ramos on warrantless
arrests and rebellion as a continuing crime, a doctrine that may merit
renewed evaluation. Yet any healthy reexamination of Umil, or other
precedents for that matter, require the presentation and trial of the
proper factual predicates, a course which the majority unfortunately
“short-cuts” in this present decision.
Of course, despite the grandiloquent pronouncement by the
majority that the acts complained of by the petitioners and
implemented pursuant to General Order No. 5 are illegal, it could
nonetheless impose civil, criminal or administrative
_______________
56 Id., at p. 345.
320

sanctions on the individual police officers concerned, as these

officers had not been “individually identified and given their day in
court.” Of course, the Court would be left with pie on its face if
these persons, once “given their day in court,” would be able to
indubitably establish that their acts were actually justified under law.
Perhaps worse, the pronouncement of the majority would have had
the effect of prejudging these cases, if ever lodged, even before trial
on the merits.
Certainly, a declaration by the majority that PP 1017 or General
Order No. 5 cannot justify violation of statutory or constitutional
rights (a declaration which the minority would have no qualms
assenting to) would sufficiently arm those petitioners and other
persons whose rights may have been injured in the implementation
of PP 1017, with an impeccable cause of action which they could
pursue against the violators before the appropriate courts. At the
same time, if the officers or officials concerned have basis to
contend that no such rights were violated, for justifications
independent of PP 1017 or General Order No. 5, such claims could
receive due consideration before the courts. Such a declaration

would squarely entrench the Court as a defender of the Bill of
Rights, foster enforceable means by which the injured could seek
actual redress for the injury sustained, and preserve the integrity and
order of our procedural law.
VI. Conclusion
The country-wide attention that the instant petitions have drawn

should not make the Court lose focus on its principal mission, which
is to settle the law of the case. On the contrary, the highly political
nature of these petitions should serve as forewarning for the Court to
proceed ex abundante cautelam, lest the institution be unduly
dragged into the partisan mud. The credibility of the Court is
ensured by making decisions in accordance with the Constitution
without regard to the individual personalities involved; with sights
set on posterity, oblivious of the popular flavor of the day.
321
VOL. 489, MAY 3, 2006 321

By deciding non-justiciable issues and prejudging cases and

controversies without a proper trial on the merits, the majority has
diminished the potency of this Court’s constitutional power in favor
of rhetorical statements that afford no quantifiable relief. It is for the
poet and the politician to pen beautiful paeans to the people’s rights
and liberties, it is for the Court to provide for viable legal means to
enforce and safeguard these rights and liberties. When the passions
of these times die down, and sober retrospect accedes, the decision
of this Court in these cases will be looked upon as an extended
advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect
scrutiny from those interested and tasked with preserving our civil
liberties. They may even stand, in the appropriate contexts, as viable
partisan political issues. But the plain fact remains that, under legal
contemplation, these issuances are valid on their face, and should
result in no constitutional or statutory breaches if applied according
to their letter.
I vote to DISMISS all the petitions.
Petitions partly granted.
Notes.—The Supreme Court, however, does not categorically

rule that the IBP has absolutely no standing to raise constitutional
issues, but the IBP must, by way of allegations and proof, satisfy the
Court that it has sufficient stake to obtain judicial resolution of the
controversy. (Integrated Bar of the Philippines vs. Zamora, 338

SCRA 81 [2000])
The rationale for requiring a party who challenges the
constitutionality of a statute to allege such a personal stake in the
outcome of the controversy is “to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.” (Fariñas vs. Executive Secretary, 417 SCRA 503 [2003])
——o0o——
322
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

David Vs Arroyo

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

David Vs Arroyo

Uploaded by

Copyright:

Available Formats

9/17/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 489

160 SUPREME COURT REPORTS ANNOTATED

G.R. No. 171396

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,

G.R. No. 171485

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO,

VOL. 489, MAY 3, 2006 161

LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF

G.R. No. 171483. May 3, 2006.*

KILUSANG MAYO UNO, REPRESENTED BY ITS

G.R. No. 171400. May 3, 2006.*

ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs.

G.R. No. 171489. May 3, 2006.*

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,

162 SUPREME COURT REPORTS ANNOTATED

CUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE

G.R. No. 171424. May 3, 2006.*

LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-

Constitutional Law; Separation of Powers; Checks and Balances;

Same; Same; Same; Same; Requisites; The power of judicial review

VOL. 489, MAY 3, 2006 163

David vs. Macapagal-Arroyo

164 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo

it confers no rights, it imposes no duties, it affords no protection; it is in

Same; Same; Same; Same; Same; Same; The difficulty of determining

Same; Same; Same; Same; Same; Same; Taxpayer’s Suits; Citizen’s

VOL. 489, MAY 3, 2006 165

David vs. Macapagal-Arroyo

166 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo

Same; Same; Same; Same; Same; Same; Being a mere procedural

the exercise of its discretion, such as in cases of “transcendental

Same; Same; Same; Same; Same; Same; Requisites in order that

Same; Same; Same; Same; Same; Same; It is in the interest of justice

VOL. 489, MAY 3, 2006 167

David vs. Macapagal-Arroyo

171485, the opposition Congressmen alleged there was usurpation of

that those affected by PP 1017 can be represented by their Congressmen in

Same; Same; Same; Same; Same; Same; Organizations may be granted

Same; Same; Same; Same; Same; Same; National officers of the

168 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo

Same; Same; Same; Presidency; Parties; It is not proper to implead

VOL. 489, MAY 3, 2006 169

David vs. Macapagal-Arroyo

is important that he be freed from any form of harassment, hindrance or

Presidency; Calling-Out Power; Declaration of State of National

170 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo

Same; Same; Same; In times of emergency, our Constitution

Same; Same; Same; Freedom of Expression; Facial Challenges;

VOL. 489, MAY 3, 2006 171

David vs. Macapagal-Arroyo

or suppress all forms of lawless violence. In United States v. Salerno, the US

Same; Same; Same; Same; Same; Same; The overbreadth doctrine is

rebellion are considered “harmful” and “constitutionally unprotected

Same; Same; Same; Same; Same; Same; Facial invalidation of laws is

172 SUPREME COURT REPORTS ANNOTATED

David vs. Macapagal-Arroyo

rules governing constitutional adjudication is the principle that a person to

Same; Same; Same; Same; Same; Same; “Void for Vagueness”